DWT244

WTC/23/86

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044789 (CA-00055617-007)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 44 Workplace Relations Act 2015. A Labour Court hearing took place on 12 January 2024. The following is the Decision of the Court:

DECISION:

This matter comes before the Court as an appeal by Liviu Lucian Ionut (the Appellant) against a decision of an Adjudication Officer CA-00055617-007 in his complaint made under the Organisation of Working Time Act, 1997 (the Act) against Vladimir Vecerin Pepito Trade (the Respondent).

The Appellant was employed by the Respondent from 30th May 2022 until 9th March 2023. The within complaint was made to the Workplace Relations Commission on 21st March 2023.

Background

The employer was unable to provide the Court with records of the working time of the Appellant or of any days and hours of leave in each week granted by way of annual leave or in respect of a public holiday to the Appellant and the payment made to each employee in respect of that leave during the cognisable period for the within complaint.

The Act Section 25 makes provision 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 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.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(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.

Statutory Instrument S.I. number 473/2001 - Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001 makes provision in relevant part as follows:

Form of records under section 25(1).

3.The records required to be kept under section 25(1) shall contain the following particulars and documents —

(a)  the name and address of each employee concerned, the number known as the Revenue and Social Insurance number that has been assigned to him or her and a brief statement (which may be by reference to any form of job description or classification used by the employer concerned) of his or her duties as an employee,

(b) a copy, as appropriate, of the statement provided to each employee concerned in accordance with the provisions of the Terms of Employment (Information) Act, 1994 (No. 5 of 1994), or any order or regulation made under that Act, that relates to him or her,

(c) (i) the days and total hours worked in each week by each employee concerned,

(ii) any days and hours of leave in each week granted by way of annual leave or in respect of a public holiday to each employee concerned and the payment made to each employee in respect of that leave,

(iii) any additional day's pay referred to in section 21(1)(d) provided in each week to each employee concerned, and

(d) a copy of a written record of a notification issued to an employee concerned in relation to any of the matters provided for in section 17 (including a copy of a notice posted in the manner referred to in subsection 5 of that section),

and shall generally be in such form as will enable an inspector to understand the particulars contained in them without difficulty.

4. (1) Where no clocking in facilities are in place in a work place a form to record the days and hours worked in each week by each employee shall be kept by the employer in the form set out in the Schedule entitled Form OWT 1 or in a form substantially to like effect.

The Respondent, in oral submission, confirmed to the Court that no records in the manner prescribed by S.I no 473 of 2001 had been maintained. Accordingly, because Respondent failed to keep records under Section 25 (1) in respect of its compliance with Section 21 of the Act, in relation to the Appellant, the onus of proving in these proceedings that the said provision was complied with in relation to the Appellant lies on the Respondent.

Summary submission of the Appellant.

The Appellant submitted that he had never been paid in respect of work on Public Holidays in accordance with the provisions of the Act. He submitted that there were five public holidays in the cognisable period form the within complaint. These were the October Bank Holiday of 2022, 25th and 26th December 2022, 1st January 2023 and 17th March 2023.

The Appellant, when questioned, accepted that the public holiday of 17th March 2023 fell after his employment had terminated.

The Appellant declined to proffer sworn evidence in relation to the within complaint.

Summary submission of the Respondent

The Respondent submitted that the Appellant had at no time worked on a public holiday but did receive his wages in the normal manner in a week where a public holiday fell. He submitted that there are no records of the Appellant’s work on public holidays because he had never worked on those days.

The Respondent declined to tender sworn evidence in relation to the within complaint.

Discussion and Conclusions

Neither party availed of the opportunity to proffer sworn evidence in relation to the matter before the Court despite being invited to do so by the Court.

The Appellant has asserted that he never received payment in respect of public holiday working at any time material to the within complaint. The Respondent has not been able to provide any records as required by the Act in his efforts to rebut the sworn evidence of the Appellant but has asserted that no public holiday working took place at any time material to the within complaint or at all.

The Appellant has not gone beyond submitting that five public holidays occurred in the cognisable period for the within complaint and that he was required to work on each of those public holidays. The Court notes for example that the complaint includes an assertion that the Appellant worked on Christmas Day 2022.

In Jakonis Antanas v Nolan Transport  [2011] 22 E.L.R. 311 the Court held in relation to the application of Section 25(4) of the Act as follows: -

The burden on a respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from s.27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.

This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”

The Court is not satisfied that, through his submission and in the absence of any evidence, the Appellant has met the evidential burden resting upon him in a manner sufficient to raise a reasonable possibility that Section 21(1) of the Act was contravened by the Respondent.

The Court therefore concludes, on the balance of probabilities, that the Respondent has not been in breach of the Act in the manner contended for by the Appellant.

Decision

The within appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
SOC	______________________
16 February 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Sinead O'Connor, Court Secretary.