Complainant

Respondent

Anonymised Parties

Construction Worker

Construction Company

Representatives

Michael Houlihan and Partners Solicitors

Self

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00024054-002

12/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024054-003

12/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024054-004

12/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00024054-005

12/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00024054-006

12/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00024054-007

12/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024054-008

12/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00024054-009

12/12/2018

The Complainant worked for the Respondent from 16th March 2018. He submitted eight complaints against the Respondent to the WRC on 12th December 2018.

Additional submissions were received from the parties on 7th May 2019.

The Complainant submits that he is owed 5 days’ pay for the week before his leave (16th to 20th July) and 7 days working days after his leave (30th July to 7th August). The Complainant also claims that he is owed holiday pay for the week of leave he was required to take (23rd to 27th July 2018). The Complainant submits that in early July 2018 his team were ahead of schedule thus he was told to take a week off. He had not been paid for the last week before the holiday at this juncture. He took the week off. The Complainant claims that he frequently contacted the Respondent about his wages, and when he would recommence work after the break. The Complainant claims that the Respondent usually did not reply, but when he did he would tell him he would chat to him soon. The second week passed without contact with respect to work or wages. At this point, the Complainant argues that he was owed wages for the week before the break and holiday pay for the two weeks after. On the third week off, Tuesday 7th August 2018 the Respondent rang the Complainant and told him he was let go with immediate effect.

The Complainant claims that as of 27th July 2018 the Respondent owed him €2,450 in pay, €1,300 in annual leave and €650 in respect of notice not received.

The Complainant argues that the Respondent is a construction sector company and the Complainant worked as General Operative and should be paid €17.04 per hour.   The Complainant argues that any award should be based on his statutory minimum wage and not the rate he was actually paid. The Complainant cited ADJ-00017870 in that regard.

The Complainant further argues that while his work was varied and involved different start and finish times, his average working day was 12 hours. Where working on site would come under 12 hours this would often be because of the distance of the site from the Respondent’s base in a named town. The Complainant relies on Federación de Servicios Privados del sindicato Comisiones obreras (CC.OO) v Tyco Integrated Security SL, C-266/14 where the Court outlined travel time to worksites was in fact working time for the purposes of the European Working Time Directive. The Complainant claims that travel to work sites was a constant feature of his work and he is confident that a 12 hours average is conservative with this included.

The Respondent submits that the Complainant worked a standard 7.30-8am to 5-5.30pm hours. The Respondent confirmed at the hearing that the Complainant was owed 5 days’ pay for the period from 16th to 20th July 2018. However, the Respondent argued that the Complainant was informed that it would only be paid to him when he pays back the amount owed for the damage to the Respondent’s vehicle.

The Respondent argues that after 20th July 2018 the Complainant “disappeared”, he was not on leave but did not turn up for work. The Complainant caused a road traffic accident on the 18th July 2018. The Respondent argues that after 20th July 2018 neither the Respondent nor the Gardaí could get in contact with the Complainant. He did not turn up for work and did not answer the Respondent’s calls. The Respondent submits that on 28th July 2018 he was required to send an employee to the Complainant’s mother house in an attempt to locate the Complainant and recover a company van which the Complainant took without permission. The Complainant was in his mother’s house, in bed and he did not answer the Respondent’s calls until contact was made on 7th August 2018. The Respondent therefore assumed that the Complainant ultimately stopped working for the Respondent after 20th July 2018.

The Respondent also submits that the Complainant was inexperienced and, in the Respondent’s opinion did not fall within the definition of General Operative.

The Complainant alleges that he is owed a week’s salary for the week 16th – 20th July 2018, a week of annual leave from 23rd to 27th July 2018 and a seven day’s pay when he was available for work but no work was given to him between 30th and 7th August 2018.

I found the evidence of the Respondent to be consistent and credible while I found the evidence of the Complainant to be inconsistent and lacking in credibility. The Complainant confirmed that he was in a crash involving the Respondent’s pick-up truck on 18th July 2018. He confirmed that he had a number of missed calls from the Respondent following the crash and did not dispute that on 28th July the Respondent was required to send a staff member to collect its van which the Complainant took away and did not return. The Complainant said that he was still in bed at the time as he was “sick and tired” after working long hours the previous week. However, he also claimed that he was asked to take a week of leave during the previous week. He said that he tried to ring Mr C “a couple of times” but then confirmed that he did not reply to the Respondent calls until contact was made on 7th August as he thought Mr C of the Respondent was “fuming”. At the same time, he claimed that he was available for work but no work was offered to him and that the Respondent did not answer his calls and when he did he would say “he would chat to him soon”.

I therefore, on balance, find that the Complainant was not told to take a week of annual leave and it was the Complainant who did not turn up for work.

I note that it was not disputed that the Complainant was owed his weekly wage for week 16th -20th July 2018.

In respect of the rate of pay applicable, the Complainant argued that he was General Operative. The Respondent disputed that.

The Complainant undertook to submit evidence supporting his assertion that he had the relevant experience. Post hearing the Complainant submitted information regarding his “previous experience in the UK as a Construction General Operative”. This included a copy of a Construction Skills Certification Scheme card (expiry date January 2019) and copies of bank statements. The bank statements are not of much of evidential value, they show highlighted 4 payments made into a bank account: one in March 2014, one in April 2014, and two in June 2015. It is unclear how the payments serve to confirm the Complaint’s experience as a Construction Operative.

In respect to the CSCS card, regrettably, no further information was adduced by the Complainant. Information available online states as follows in relation to the card provided:

“You will need to have passed the CITB Health, safety and environment test within the last 2 years. You can apply for this card if you have completed the QCF Level 1/SCQF Level 4 Award in Health and Safety in a Construction Environment or SCQF Level 5 REHIS Elementary Health and Safety Certificate. This is a lifetime qualification that only needs to be completed once and will be accepted in 5 years’ time when renewing your Labourer card.” (https://www.cscs.uk.com/card-type/labourer/)

The card, therefore, does not confirm that the Complainant falls within the definition of General Operative Grade B, as claimed, which is defined as “skilled general Operatives with More than 1 Year’s Experience working in the Sector”.

The Complainant was given an opportunity post-hearing to provide evidence of his experience within the construction sector. He did not do so. Accordingly, I find that the correct rate of pay applicable is that of New Entrant Operative at €13.77 per hour.

The matter of weekly hours of work is addressed in more detail in CA-00024054-009below. As per my finding below, I do not accept that the Complainant’s daily hours of work were 12-14 as claimed by his solicitor.

In absence of any adequate records, I find that the Complainant is owed €620 gross for the week 16th to 20th July, which I consider just and equitable in the circumstances.

I declare this complaint partly well-founded. I order the Respondent to pay the Complainant €620 gross, subject to any lawful deduction.

The Complainant submits that he is owed 12 days of annual leave with 5 taken though unpaid. The Complainant argues that at no stage throughout his employment with the Respondent was he given holiday pay.

At the adjudication hearing, the Complainant additionally requested that a further award of 10 days pay is made for the Respondent’s failure to consult the Complainant as to when his holiday leave should be taken as required under Section 20 of the Organisation of Working Time Act.

The Respondent conceded that the Complainant was owed his annual leave accrued between 16th March and 20th July 2018.

The Respondent did not dispute that the Complainant was not given his annual leave entitlements.

It is unclear how did the Complainant arrive with the annual leave of 12 days.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 12th December 2018 and therefore the cognisable period that may be investigated is 13th June 2018. I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from the 1st April 2018 to the termination date.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

(1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)      4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)      one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)       8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

Section 23 of the Act provides for compensation on cessation of employment.

“(1)(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee, the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave.”

In the absence of any adequate record I can only estimate the annual leave entitlements. The Complainant worked for the Respondent for some 19 weeks (week 12 to 30 of 2018). In total he worked some 76 days. Therefore, he would have accrued an entitlement to some 6.08 day of annual leave.

In relation to the request raised at the hearing for compensation for the Respondent’s failure to consult the Complainant as to when his holiday leave should be taken, I find that this matter was not raised by the Complainant or his legal representative at any stage between 12th December 2018 when he submitted his complaint to the WRC and the hearing day. The Complainant sought an introduction of a new claim which the Respondent was not on notice of.

I therefore find that the Respondent was not given a reasonable opportunity to deal with this particular complaint. Accordingly, I find that I have no jurisdiction to permit the introduction of the claim.

I declare this complaint well-founded. I order the Respondent to pay the Complainant €753.49 in respect of the annual leave accrued.

The Complainant submits that he is owed 12 days of annual leave with 5 taken though unpaid. The Complainant argues that at no stage throughout his employment with the Respondent was he given holiday pay. The Complainant submits that he did not receive his entitlements on cessation of employment, as provided for by Section 23 of the Organisation of Working Time Act, 1997.

The Respondent conceded that the Complainant is due annual leave entitlements accrued between 16th March and 20th July 2018.

The matter of accrued annual leave is dealt with in 00024054-003, above.

I declare this complaint not well-founded.

The Complainant submits that he worked as General Operative. The Complainant claims that the working conditions were consistently poor and his wages were set at €90 a day which was less that the minimum wage. Following requests from the Complainant his wages were increased to €100 a day in June 2018.

The Complainant contends that he was required to drive a truck when the Respondent was aware that at the time he did not have a driver’s licence. The Complainant argues that he felt obliged to drive the truck in order to keep his job. The Complainant further submits that he notified his supervisor of his concerns with the truck’s breaking system. However, the truck continued to be used. This resulted in a minor collision when a car stopped abruptly in front of the truck while the Complainant was driving it causing him to swerve towards a bollard. Both the bollard and the car in front of him were hit at a low speed resulting in damage to both the car and the truck.

The Complainant submits that some weeks later he had a company van stolen from him. He was unaware of the area he was working was adjacent to an area with high crime and had not been told that a company van had been stolen from the area before. While the van was recovered the tools inside were not.

The Complainant submits that he was told to take a week’s leave from 23rd to 27th July 2018. Following the week of leave the Complainant tried to get instructions as to which job he should report to, however, he was unable to contact the Respondent or get clear instructions from any of the other employees. He claims that he remained at home available to work and seeking instructions from his employer. This lasted until 7th August 2018 when he was dismissed.

The Complainant claims that he remains unsure as to the exact basis of his dismissal. He was never invited to a hearing or an interview by his employer. He was not given any notice that he might be dismissed nor was he notified of any negative feedback from his supervisors.

Following the submission of the WRC complaint the Complainant received a statement from the Respondent outlining a number of alleged grievances the Respondent had with him. The Complainant argues that the document was the first time he had been notified of problems with his performance and it contains a number of inaccuracies, misrepresentations and untruths, which the Complainant addressed in detail. The Complainant argues that his dismissal falls short of the minimum standard for fair procedure as outlined in S.I. 146/2000. In that regard the Complainant requests a payment to be awarded to him commensurate with the loss incurred.

The Complainant conceded that he was absent on 5 occasions, one was certified and the other were because he had a flu or was sick and tired.

The Complainant accepted that he had a couple of missed phone calls from Mr C of the Respondent. He said that he rang him back “a couple of days after” but couldn’t get through. He claims that Mr C rang him on 7th August 2018 and told him that it is not working out and “he is gone”.

The Respondent submits that the Complainant worked for the Respondent from 8th December 2017 until 29th December 2017 when he was dismissed. He was then taken back on 16th March 2018 as he was unable to find work and he was a cousin of one of the valued employees of the Respondent. The Respondent argues that the Complainant’s last day with the Respondent was 20th July 2018. The Respondent asserts that after that day the Complainant did not turn up for work. The Respondent assumed that his employment ceased as of that date.

The Respondent submits that shortly after the commencement of his employment there were complaints in respect of the Complainant’s performance from his foreman. The foreman spoke with the Complainant on a couple of different occasions until he eventually asked for the Complainant to be moved to another job. The Respondent submits that the Complainant was moved but the same issues occurred again. The Respondent moved the Complainant again this time to work with a gang in a hope that he may be able to follow their lead and work better under Mr C (the owner) of the Respondent.

The Respondent submits that the Complainant was driving a new van and had left the keys in the ignition and the van running while he got out to get something out of the back of the van. As a result, the van was stolen. The Complainant was previously told to keep the keys with him at all times. The Respondent notes that while the van was recovered, all of the tools, most of them specialised for the civil / groundworks worth approx. €12,000 were missing. Additionally, the cost of a new lock and keys was approx. €250. The Respondent claims that at this stage he moved the Complainant to another project and, again, the foreman had issues with the Complainant. The Complainant did not turn up for work on several occasions. He would not answer his phone to advise why he was not in that day.

The Respondent submits that about 2 weeks before the Complainant finished up working for the Respondent he informed Mr C of the Respondent that he had no driver’s licence. This caused great problems. The Respondent claims that he told the Complainant not to drive anything on any of the jobs. The Complainant told the Respondent that he would have his licence sorted in a few days but this never happened. On 18th July 2018 the Complainant was driving the Respondent’s pick up truck (after being told not to drive anything belonging to the Respondent) and he crashed into bollards along with 3rd party’s car and caused considerable damage. The Gardai were called and spoke to the Complainant at the time. The Complainant did not take any details of the other driver, so the Respondent had no way to resolve the matter. The Complainant advised the Respondent that he would fix the truck on Saturday 28th July 2018. However, he did not turn up and after 20th July 2018 the Respondent could not get through to him on the phone. He did not answer or return the calls. Gardai were also trying to get in contact with him as they needed his statement in relation to the accident of 18th July 2018. He had also taken one of the Respondent’s van without the Respondent’s knowledge. The Respondent claims that he had to send one of the employees to the Complainant’s mother’s house to collect the van. The Complainant’s mother was required to get him out of bed to hand over the keys.

The Respondent submits that he had given the Complainant plenty of chances to prove himself as he was a cousin of a valued member of his team and he is very sorry that he had. The Respondent had given the Complainant more than enough chances and he had been warned on numerous occasions.

The Respondent exhibited his record of the Complainant’s absences.

In relation to this dispute I find as follows.

There is a sharp difference in the submissions given by the Respondent and the Complainant in respect of practically all material facts of this case and no corroboration of either version of the events was available. It is not necessary for the Adjudication Officer to resolve all of those conflicts and it would be extremely difficult to do so given the divergence. However, there are a number of critical matters on which conclusion must be reached.

The Respondent outlined a whole plethora of issues with the Complainant’s performance during his short tenure. The Respondent claimed that these were discussed with the Complainant on an informal basis and that he was moved to different jobs due to the complaints from the foremen. The Complainant did not dispute that he left the engine of the van he drove running with keys in the ignition and, as a result the van was stolen. He also did not dispute that he crashed the pick up truck while driving without a licence. The Respondent argued that the Complainant did not turn up for work after 20th July 2018 and the Respondent considered that a dismissal date. The Respondent pointed out that it could not have followed the procedures as it had difficulties with contacting the Complainant. The Respondent claimed that it tried to get in touch with the Complainant after the 21st July 2018 in respect of his absence but also in relation to Gardaí inquiries about the whereabouts of the Complainant. The Respondent was required to send an employee to the Complainant’s mother’s home on 28th July 2018 to recover the van which the Complainant took without permission. The Respondent did not deny that he told the Complainant that things are not working out for them on 7th August 2018. The Respondent accepted also that he did send a text message to the Complainant on 10th August 2018.

The Respondent argued that it became apparent that the Complainant was not suitable for the position. The Respondent further argued that the Complainant’s performance, the non-attendance for work, particularly after 20th July 2018 and his failure to make any contact with the Respondent justified its decision to discontinue his employment.

The Complainant put the blame on the Respondent for permitting him to drive the company’s vehicles despite him not having driver’s licence. He also argued that he was told to take annual leave between 23rd and 27th July 2018. He was then available for work between 30th July and 7th August 2018 and subsequently he was dismissed on 7th August 2018.

I find the Complainant’s submission not credible. His evidence was vague and incoherent at times. He stated that he was told to take a week’s leave specifically the week 23rd to 27th July 2018. At the hearing he claimed that he overslept on 28th July as he was “sick and tired” after working 12-14 hours a day for the whole week until the previous day. He further stated that he was not in a position to get instruction as to what job to report to, following his leave (ending on 27th July 2018) and he remained at home available to work and “frequently contacted” the Respondent seeking instructions. The Complainant confirmed at the hearing that an employee of the Respondent visited him in his mother’s house to collect the van and he had a number of missed calls from the Respondent, including on 28th July 2018 but did not try to contact the Respondent until “a couple of days later” as he thought the Respondent was “fuming”.

I note that the text messages the Complainant relied upon of 10th August 2018 clearly indicate that the Respondent proposed for him to “…go down to [named location] and fix the pier cab if you want and that would be a start” and further ”Come back to me”.

The WRC and the Labour Court consistently emphasised that an employer is required to follow fair procedures before it makes a decision to impose a disciplinary sanction on a worker or to dismiss the worker. The manner in which the Respondent in this case dealt with the Complainant’s performance issues was way short of best practice. However, the Complainant knew or ought to have known that his performance left much to be desired. I also find that the Complainant chose not to report for work after the 20th July 2018 and was summarily dismissed. In all the circumstances, I find that the Complainant contributed very significantly to his own dismissal. On that basis, I do not recommend that any compensation is payable to the Complainant.

I find that the Respondent failed to demonstrate that it addressed the Complainant’s performance issues in a sufficiently formal manner that afforded the full benefit of fair procedures to the Complainant. However, considering the Complainant’s contribution to his dismissal I do not recommend that any compensation is payable.

The Complainant submits that he did not receive his minimum notice and requests an award of 5 days’ pay in lieu of the minimum notice period.

The Respondent submits that the Complainant was dismissed due to misconduct. It was not possible to give the Complainant his notice as there was no contact with him. The Complainant did not turn up for work after 20th July 2018.

Section 8 of the Minimum Notice and Terms of Employment Act, 1973 provides as follows: “8. Right to terminate contract of employment without notice

Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party”

I find that the Complainant was dismissed for misconduct which disentitles him to his right to notice.

I declare this complaint not well founded.

The Complainant submits that he did not receive his terms of employment and requests an award of 20 days’ pay for the Respondent’s failure to provide him with the information required under Section 3 of the Act.

The Respondent conceded that no written terms of employment were issued to the Complainant. The Respondent noted that it has since engaged a HR company to deal with such matters as terms of employment.

I find that the Respondent was in breach of Section 3 of the Terms of Employment (Information), Act 1994 and that the Complainant was not provided with a written statement of his terms and conditions of employment at any stage during his period of employment.

Section 7(2)(d) of the Act states that an employer can be ordered “to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration”.

Taking all of the circumstances of this case into consideration I direct the Respondent to pay the Complainant compensation of €500.

The Complainant submits that he did not receive his breaks. He claims that he received 30 minutes break at 10am and 30 minutes break at 1pm. In the written submission, the Complainant argues that his average working day began at 7.30am. “there was no set finish times for jobs which often stretched into the evening and always went to at least 5.30pm…”. The Complainant also argues that he would normally finish at 5.30pm but he would often work later into the evening, sometimes up to 10pm. He would often work an hour or two drive from his home and thus, may not get home until after 10pm. He claims that the omission of regular break after 5.30pm caused the Complainant difficulty. The Complainant argued that he was entitled to a break every 6 hours.

The Complainant requests 25 days’ pay compensation in that regard.

In his direct evidence the Complainant stated that normally he would finish by around 5.45pm. He added that maybe once very two weeks he would finish later. The matter of working hours is addressed in detail below.

The Respondent argues that the Complainant would be informed by phone about the site he was required to work on on the next day. The Respondent argues that the longest distance the Respondent’s employee worked in was a named location some 65 km from the Respondent’s base town, but most works were in two named locations nearby. The Respondent claims that there were at least two breaks given, one in the morning and another one between 1-2pm, usually around 45 minutes. As the Respondent was not able to control all sites, it was left to the employees to ensure that they take their breaks.

Section 12 of the Organisation of Working Time Act, 1997 states: (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

The Complainant confirmed that he received two breaks of 30 minutes duration each.

I declare this complaint not well founded.

In his submission to the WRC the Complainant claims that he was required to work more than the maximum permitted number of hours. He submits that he worked 60 hours a week. The Complainant submits that he would normally start work at 7.30am when he was collected by colleagues, and he would normally finish at 5.30pm. However, it was often the case that he was kept on much later into the evening, sometimes up to 10pm. Regardless of where he worked in the town or in the country he would only get paid for the time on site. He would often work an hour or two drive from home and thus, may not get home until after 10pm. Over the course of his employment and especially summer months he could work over 60 hours a week.

The Complainant requests a payment of 30 days’ pay in compensation.

In his direct evidence the Complainant stated that he normally worked from approximately 7.30am to 5.45pm. He stated that the hours “sometime varied, not often”. He also stated that “once or twice he was paid for extra hours” and then that“normally finished at 6pm”.

The Respondent submits that the normal working hours are from 7.30-8.30am to 5-5.15pm. If on rare occasions overtime occur, employees would take time off on a Friday. The Respondent noted that the Complainant normally worked 8am to 5pm.

The Respondent accepted that no records of hours worked were kept until March 2019 when following a WRC inspection, the Respondent engaged a HR company to deal with the matter. These records, signed by the employees and the Respondent show clearly that the hours worked are consistently 8am-5pm with an earlier finish on Friday at 4pm.

It is accepted by the Respondent that it did not maintain records showing compliance with the Act, as is required by s.25.

25. Records

(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 this Act [and, where applicable, the Activities of Doctors in Training Regulations] are 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.

4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act [or the Activities of Doctors in Training Regulations] in 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.”

Where statutory records are not maintained the employer is faced with the burden of rebutting what is in effect a presumption of non-compliance.

The Labour Court held in DWT 1018 Rezmerita Limited v Katarzyna Uciechowska:

“In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case. There was also an absence of any probative independent corroboration on either side. The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities. In Miller v Ministry of Pensions [1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

“[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not”

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was presented to the WRC on 12th December 2018. Therefore, the cognisable period is from 13th June 2018 to 12th December 2018. The Complainant’s last day at work was 20th July 2018. On two occasions (week 26 and 28 of 2018) the Complainant appears to have worked 4 days per week.

I have carefully considered the conflicting evidence given by Complainant on the one hand and that given by the Respondent on the other.

The Respondent, who was unrepresented, gave clear and concise evidence and answered the Adjudication Officer’s question in a direct manner. The Complainant, on the other hand did not provide clear answers. In his WRC Complaint Form, the Complainant argued that he would be collected at 7.30am and often didn’t get home until 10pm. He then stated that he would “start at 7.30am and normally finish at 5.30pm, but he was often kept on much later into the evening, sometimes up to 10pm…he would often work an hour or two drive from home and thus, may not get home until after 10pm”.

In the written submission presented at the hearing, the Complainant’s representative argued that the working day (i.e. on the site not time of collection from home) began at 7.30am and jobs …”often stretched into the evening and always went to at least 5.30pm”.

When asked by the Adjudication Officer, the Complainant stated that his normal hours were 7.30am-5.45pm with two 30 minutes breaks. When it was put to him that these hours would not amount to 12-14 hours a day, he stated that the hours “sometimes varied, not often”, “sometimes he worked until 8pm or 10pm”, “maybe once in two weeks finished later”, “normally finished at 6pm” and “once or twice was paid for extra hours”. I find the Complainant’s evidence unreliable.

I note that the Complainant argued that he was required to work in locations up to two hours drive from home. I find this implausible. Both parties referred to a number of locations the Complainant would have worked at. There were two locations which appear to be the furthest distance from the Respondent’s base. Both are approximately 70 km away (some 49-50 minutes’ drive according to an online route planner).

Having considered the submissions and evidence at the hearing given by both parties and in the absence of any adequate records, I have come to the conclusion, on the balance of probabilities, that the Complainant’s hours of work in the cognisable period would not exceed the maximum permissible under the Act.

I declare this complaint not well founded.

Unfair dismissal, annual leave, hours of work, breaks