FULL RECOMMENDATION
SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES :PMC PAINTING CONTRACTORS LIMITED
SUBJECT:1.Appeal of an Adjudication Officer's Decision No(s) ADJ-00009799 CA-00012817-001 BACKGROUND: 2.The Worker referred her case to the Labour Court on 8 March 2019, in accordance with Section 28(8) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on 4 November 2021. The following is the Determination of the Court: DETERMINATION: This matter comes before the Court as an appeal by Ms Patrycja Kwidzinska (the Appellant) of a decision of an Adjudication Officer ADJ-00009799 CA-00012817-001 in her complaint against PMC Painting Contractors Limited (the Respondent) made under the Organisation of Working Time Act, 1997 (the Act). The Adjudication Officer decided that the Appellant was not employed under a lawful contract of employment at times material to her complaint.The Respondent did not attend the hearing of the Court. The Respondent’s representative did, in advance of the hearing of the Court, advise the Court that, having received the relevant notifications from the Court, he was without instruction from his client and consequently would not be attending the hearing of the Court. The Court is satisfied that the Respondent, through his representative, was properly notified of the date, time and venue for the hearing of the within appeal.The Appellant submitted that her employment ended on 12thJuly 2017.Preliminary matterThe Respondent submitted that the contract of employment of the Appellant was tainted with illegality and that this made the contract unenforceable. The Court decided to hear the parties in relation to this matter as a preliminary matter.Summary position of the Appellant on the preliminary matterThe Appellant submitted that: A contract of employment existed between her and her employer, the Respondent. The contract was not evidenced in writing.•She was paid in cash by the employer, which method of payment is expressly permitted by Section 2(1)(g) of thePayment of Wages Act, 1991.•The employer was responsible for deducting PAYE, PRSI and USC from her wages and remitting the appropriate payments to the Revenue Commissioners.•She did not agree to be paid without deduction of income tax, PRSI and USC as alleged by the employer and had no knowledge that the Respondent may have failed to make and pay over deductions in relation to such liabilities. She reluctantly returned to work while on maternity leave against her wishes in circumstances where the employer required her to do so. She submitted that, following the Supreme Court inHussein V Labour Court [2015] IESC 58and the ratio ofHussein v Labour Court [2012] IEHC 364, the Appellant’s contract was inherently lawful rather than a contract which dealt with unlawful matters and, as such, substantively illegal.In circumstances where the contract was inherently lawful it is not open to the Labour Court to adjudicate on whether the contract is rendered void due to matters of alleged illegality or public policy. There was no evidence of the Appellant’s knowledge of or complicity in any fraud or illegality. Any such fraud or illegality arises solely from the Respondent’s breach of its statutory obligations.Summary position of the Respondent on the preliminary matter.The Respondent did not attend the hearing of the Court. However, the Court was provided with a written submission made in advance on behalf of the Respondent. That written submission asserted as follows: The Appellant was engaged in a fraud upon the Department of Social Welfare and Revenue at times material to the complaint before the Court.•The Appellant was paid in cash. The Appellant, at a material time, was in receipt of Maternity Benefit payments from the Department of Social Protection and wages from the Respondent. These matters demonstrated that the contract of employment was tainted with illegality and that the Appellant knew of the illegality and was an active participant in the illegality. Having regard to the decision of Laffoy J. inRed sail Frozen Foods Ltd (in receivership) [2006] IEHC 328therefore the contract was unenforceable and the within appeal cannot succeed.Discussion and conclusions on the preliminary matterThe Respondent has set forward an allegation that the contract of employment of the Claimant was tainted by illegality. No evidence was tendered by the Respondent to support this proposition. In particular, the Court was not provided with detail of the element or elements of the Social Welfare or Revenue codes / regulations / legislation which was or were contended to have been breached. For example, a primary element of the alleged breach of the Revenue code is the assertion by the Respondent that the Appellant was paid in cash. The Court has not been provided with evidence or clarity as to how receipt by a worker of wages in cash constitutes a breach of any code of the Revenue. Neither has any submission been made to set out where responsibility lies for relevant taxation and related matters and whether the employer in the appeal discharged any such responsibility resting upon it. Similarly, no submission has been made that either the Respondent or the Appellant has been found by either the Department of Social Welfare or the Revenue Commissioners to have breached the Social Welfare or Revenue codes / regulations / legislation at any material time. The Appellant has not disputed that she may have been in breach of social welfare regulations but she has contended, including in oral evidence, that any such breach was not intended by her or known to her and, should it have occurred at any time, resulted from pressure from the Respondent. She has asserted, including in oral evidence, that she had no knowledge of any possible fraud on the Revenue. She submitted, including in oral evidence to the Court, that she had no knowledge of an illegality in the operation or content of her contract of employment at any material time.The Respondent in this appeal did not attend the hearing of the Court and, consequently, was not in a position to provide the Court with evidence of an illegality of contract in the within matter or to tender any evidence to rebut the oral evidence of the Appellant as regards her knowledge of any alleged illegality associated with the performance of her contract of employment. In the view of the Court, it is for the party seeking to rely on inherent illegality in a contract of employment or illegality in the performance of an otherwise lawful contract to prove the existence of the illegality and indeed the knowledge of the worker of that illegality and his or her active participation in such illegality. This Court is not at large to determine by reference to unspecified elements of the Social Welfare or Revenue Codes / regulations / legislation to make determinations as regards illegality in the performance or nature of the Appellant’s contract of employment or indeed to determine liability in respect of any such illegality or breach. The Respondent in this appeal has failed to particularise the element or elements of the Social Welfare or Revenue codes, regulations or legislation which it alleges have been breached in performance of the Appellant’s contract of employment such as to render that contract unenforceable. The Appellant however has given sworn evidence to the Court to the effect that she had no knowledge of or willing participation in any act of illegality in respect of the Revenue or Department of Social Welfare codes, regulations or legislation. The Court therefore concludes that it has not been provided with a basis upon which it can determine that the Appellant is not entitled to pursue her appeal under the Act. An unsubstantiated allegation or unproven assertion that an unspecified regulation, code or law of the Department of Social Protection or of the Revenue Commissioners has been breached cannot remove from the Court the jurisdiction to apply the Act to the facts of the case before it. The appeal before the Court therefore must be decided by reference to the statute under which the appeal has been brought.Substantive matter. Summary position of the Appellant. The Appellant submitted and gave oral evidence to the effect that, during the cognisable period for the within complaint, she had worked a total of 26 Sundays but that she had not received compensation in a manner provided for by the Act at Section 14. In her submission and evidence to the Court she detailed all of the dates involved and also detailed the number of hours she worked on all but two of those dates. She gave oral evidence as regards her estimate of hours worked in the remaining two Sundays. In summary of her evidence, she stated that she worked a total of 70 hours on Sundays in the cognisable period for the within compliant. She stated in evidence that her hourly rate of pay was €11.00 per hour and that she received no additional payment or remuneration in respect of working on a Sunday.Summary position of the Respondent. The Respondent submitted that the Appellant was not entitled to any compensation for Sunday working. The Respondent asserted that no evidence had been before the Workplace Relations Commission at first instance regarding this alleged breach of the Act.The Respondent submitted that the Appellant was required to provide proof of Sunday working to ascertain and quantify any such entitlement.Relevant LawThe Act at Section 14, in relevant part, provides as follows: 14.— (1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely— (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or(d) by a combination of two or more of the means referred to in the preceding paragraphs. Section 25 of the Act makes provision in relevant part as follows: 25.— (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 F18 [ 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. Discussion and conclusion.The Court, while noting the submission of the Respondent, has regard to Section 25 of the Act which makes plain that it is the responsibility of the employer to maintain relevant records and that where an employer fails to keep such records in respect of his or her compliance with a particular provision of the Act in relation to an employee, the onus of proving, in proceedings before the Court, that the said provision was complied with in relation to the employee shall lie on the employer. In this matter the Respondent has provided no evidence or records to discharge the burden resting upon it to establish its compliance with the Act. The Court therefore accepts the submissions and oral evidence tendered by the Appellant which has not been rebutted or challenged by reference to evidence or records submitted or given by the Respondent. The Appellant submitted and gave oral evidence that the Respondent had failed on 26 occasions to afford to her the entitlement set out in the Act at Section 14. She provided an affidavit to the Court that the cumulative number of Sunday Hours worked in the period was 70. The Court therefore concludes that the Respondent was in breach of the Act on 26 occasions in the six-month period prior to 27thJuly 2017. The Act at Section 27(3)(c) provides that the Court may award compensation of such amount as is just and equitable having regard to all the circumstances, but not exceeding two years remuneration. The Appellant gave evidence that she received €11.00 per hour in wages. The Court received no submission from either party as regards the appropriate level of compensation which should be considered in respect of breaches of the Act. The Court concludes that, having regard to all of the circumstances, compensation which is just and equitable in the circumstances should be calculated to reflect a loss to the Appellant of the application of a premium of 33% to each Sunday hour she worked in the period and an appropriate amount to reflect the breach by the Respondent of Section 14 of the Act. Decision Having regard to all the circumstances of this case, the Court measures the appropriate level of compensation which is just and equitable having regard to all of the circumstances to be €600. The decision of the Adjudication Officer is set aside. The Court so decides.
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