DWT201

Background

The Complainant was employed by the Respondent as a Counter Assistant from 29^thJune 2017 until his resignation on the 15^thFebruary 2018. The Complainant lodged a number of claims under various pieces of legislation with the Workplace Relations Commissions (WRC) on the 21st May 2018. The Adjudication Officer issued the decisions on the 15^thFebruary 2019. The Complainant appealed the decisions to the Labour Court on the 7^thMarch 2019. On receipt of submissions from both parties the Court convened a case management hearing on the 20^thJune 2019. Both parties were represented at the hearing and agreed to make further submissions to the Court on specific issues. Following the case management, the Respondent’s representatives advised the Court that they were coming off record and that all correspondence should go directly to the Respondent.

A date was set for the full hearing of the case. In advance of the hearing date the Respondent advised that they would not be attending the hearing as the company had ceased trading on the 20^thMay 2018. The Respondent could offer no explanation as to why this had not been brought to the Court’s attention at the case management hearing which they attended with their legal representative. The Respondent on the 30^thSeptember 2019 submitted an unsigned copy of abridged Financial statements for the year ended 31^stOctober 2018 showing accumulated losses and advising that the Respondent was insolvent. The Complainant was provided with a copy of the correspondence received from the Respondent. In response the Complainant informed the Court that they had driven past the Respondent’s premises and it was still operating. The Complainant also submitted a copy of an extract from the Companies Registration Office which did not record the company as having ceased trading. The scheduled hearing took place on the 11^thDecember 2019 and the Respondent did not attend. The cognisable period for the purpose of the Act is 22nd November 2017 to the 21^stMay 2018.

Complainant’s case

The Complainant’s first complainant is that in contravention of section 14 (1) of the Act the Respondent did not pay him a Sunday premium. It was his evidence to the Court that he worked every Sunday while in the employment of the Respondent but did not receive any compensation for working Sundays. The Complainant did not have any payslips.

Respondent’s case

The Respondent in its submission included a document titled Terms and Conditions of Employment which at paragraph (h) stated that a premium rate of 10 cent per hour worked would be paid for working Sundays. They also provided an undated payslip which showed a rate of €9.55 for weekday hours and a rate of €9.65 for hours worked on Sundays.

Discussion and Determination

The Complainant evidence was that he worked every Sunday and that his weekly wages were always the same. It was his belief that he did not receive a Sunday premium, but he was not in a position to put forward any documentary evidence to support his belief. It was unfortunate that the Respondent was not available to the Court to answer some query’s the Court had in relation to the documents they provided. However, the Court determines that on the balance of probabilities he was paid a Sunday Premium and therefore his appeal must fail.

Complainant’s case

The second issue raised by the Complainant was that contrary to section 21(1) of the Act, he did not receive any entitlements for Public Holidays. In his evidence to the Court the Complainant stated that he did not receive any payment for 3 bank holidays. It was his evidence to the Court that the Respondents business was closed on the 25^thDecember 2017 a day he would normally be scheduled to work but he did not get paid for it. He worked on the 26^thDecember 2017 and did not get an additional day’s pay or time off in lieu. He also worked on the 1^stJanuary 2018 and did not receive any additional payment or time off in lieu.

Respondent’s case

It is the Respondent’s submission that the Complainant received his normal day’s pay for the 25^thDecember 2017 a day the shop was closed. In relation to the 26^thDecember he was given a paid day off in lieu on the 31^stDecember 2017. It was their submission that the Complainant worked the 1^stJanuary 2018 and was given Wednesday 10^thJanuary 2018 as a paid day off in lieu.

Discussion and Determination

The Court notes that the Respondent submitted time sheets for the period 26th June 2017 to the 14th January 2018. Which it submitted were the Complainant’s time sheets. However, the Court notes that the time sheets for weeks commencing 18 December 2017, 25 December 2017 and 1^stJanuary 2018 were missing. The missing time sheets covered the dates in dispute. The Court determines based on the submissions received and the evidence given in Court, that on the balance of probabilities the Complainant was not paid for the three Public Holidays. The Court Determines that the Complainant should be paid € 80 for each of the three public holidays and €500 compensation in respect of the breaches of the Act. The Decision of the Adjudication Officer is over turned

Complainant’s case

The third issue raised by the Complainant was that contrary to section 11 of the Act, on a number of occasions within the cognisable period he did not receive a rest period of 11 consecutive hours in each 24hour period. In his evidence to the Court the Complainant disputed the time sheets submitted by the Respondent. It was his evidence that he never completed any timesheets and that the signature on each of the sheets was not his. The Complainant drew the Courts attention to a number of dates on the timesheets where his start time was recorded as 5.00pm. It was his evidence to the Court that he had in fact started work on those occasions at 10.00 am. In support of his evidence he provided the Court with a printout of whatsapp messages from the Respondent relating to those dates confirming that he was to start work at 10.00am.

The Respondents submission is that the Complainant was given the correct daily rest period and that they were relying on the timesheets which they submitted that he had signed, to confirm that he received his statutory rest entitlements.

Discussion and Determination

It was clear to the Court from the evidence of the Complainant and the Whatsapp messages that there were variances to his start times that were not reflected in the time sheets. On the occasions that those variances arose the time sheets and or rosters do not appear to have been changed to reflect same. The Court determines based on the submissions it received and evidence available to it during the hearing, that on the balance of probabilities the Complainant on a number of occasions during the cognisable period did not receive a rest period of 11 consecutive hours within a 24 hour period. The Court Determines that compensation in the amount of €3,000 should be paid to the Complainant in respect of the breaches. The Decision of the Adjudication Officer is overturned.

Complainant’s case

The fourth complaint is that contrary to section 15(1) of the Act the Complainant on numerous occasions was required to work in access of 48 hours over a seven-day period. In his evidence to the Court the Complainant stated that he was regularly expected to work 5 and on occasion 6 long days doing shift of 10 to twelve hours. It was his evidence as set out above that he did not sign the time sheets submitted and that he actually never started work at five he always started in the morning. He again drew the Courts attention to the disparities between the timesheet start times and the Whatsapps messages he received telling him his start time. It was his evidence that he routinely worked more than 48 hours a week.

Respondent’s case

The Respondent in its submission denied that there were any occasions when the Complainant worked more than 48 hours. In support of their contention they submitted that they were relying on the timesheets submitted.

Discussion

The Court notes that based on the submissions and evidence before the Court and applying the four months averaging set out in the Act, that it was possible to identify breaches of s15 within the cognisable period. The Court Determines that on the balance of probabilities the Respondent was in breach of s15 of the Act. The Court Determines that compensation in the amount of €2,000 should be paid to the Complainant in respect of the breaches. The Decision of the Adjudication Officer is overturned.

Determination

The Court Determines that there were various breaches of the Act as set out above. The Court Determines that compensation in the amounts set out above totalling €5,740 is to be paid to the Complainant. The Decision of the Adjudication Officer is upheld in respect of the Sunday Premium complaint and the other Decisions appealed and set out above are overturned.

The Court so Determines.

Signed on behalf of the Labour Court



Louise O'Donnell
TH______________________
7 January 2020Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.