DWT245

WTC/23/87 

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00044789 (CA-00055617-006)

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-00055617-006 in his complaint made under 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 annual leave taken by him 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 19 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 is entitled to annual leave calculated at 8% as per the provisions of Section 19 of the Act.

The Appellant stated in sworn evidence that he had never received payment for annual leave during his employment with the Respondent. He accepted that he was absent for one month in August 2022 but stated that he had not been paid during that absence.

He stated that he was entitled to receive payment for three weeks’ annual leave.

Summary submission of the Respondent

The Respondent submitted that the Appellant was paid in full for any leave taken. In August 2022 the Appellant travelled to Romania for a period of one month and was paid in full for the duration. The Christmas period of 28th December 2022 to 30th December 2022 was also paid in full as annual leave. In addition, the Appellant was paid in full for a period of one week from 27th June 2022 to 1st July 2022 and 23rd to 27th January 2023 while in hospital and recovering at home without having produced a sick certificate.

The Respondent declined to proffer sworn evidence when invited to do so by the Coirt.

Relevant Law

The Act at Section 19 in relevant part makes provision as follows:

Entitlement to annual leave.

19.(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.

Burden of Proof

Based on the provision at Section 25(4) of the Act, the onus of proving compliance with the Act rests with the Respondent. 

In Jakonis Antanas v Nolan Transport  [2011] 22 E.L.R. 311 the Court held in relation to the application of that subsection 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 respondent should then be called upon to put the records required by s.25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden he or she cannot succeed.

Where records in the prescribed form are not produced, and the claimant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the claimant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge that burden the claimant will succeed.

It is therefore for the Respondent to satisfy the Court that it is more probable than not that the Act was complied with in respect to the matters complained of by the Appellant. If the Respondent does not do so or if the probabilities are equal the Appellant will succeed. That is a reversal of the normal rule of evidence which requires that he who asserts must prove.

Conclusion of the Court

The Court has heard sworn evidence from the Appellant to the effect that he never received payment in respect of annual leave 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. The Respondent has confined itself to assertions as regards payment in respect of annual leave to the Appellant. In one case, August 2022, the Respondent seeks to rebut the sworn evidence of the Appellant by making an assertion to the contrary.

The Court is satisfied that, through his sworn evidence, the Complainant has met the evidential burden resting upon him sufficiently to raise a reasonable possibility that Section 19 of the Act was contravened by the Respondent.

The Court finds that the Respondent has failed to meet the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the Complainant.

The Court therefore concludes that the Respondent has been in breach of the Act in the manner contended for by the Appellant.

Section2(1) of the Act provides that a leave year is a year commencing on 1st April. Consequently, for the purpose of applying the Act, a leave year must be construed in line with the statutory definition of that term.

It is well settled that where an employee does not receive his or her full entitlement of annual leave a cause of action accrues at the end of the relevant leave year. The High Court so decided in Royal Liver Assurance Limited v Macken & ors, Unreported,  Lavan J, 15th November 2002. The Complaint of the Appellant therefore is for his entitlement to paid annual leave in the leave year 1st April 2022 to 31st March 2023.

The employment of the Appellant commenced employment on 30th May 2022 and his employment terminated on 9th March 2023. The Appellant has submitted that he was paid €550 per week by the Respondent. He has submitted that he is entitled to compensation to reflect the failure of the Respondent to afford him three weeks paid annual leave in that leave year commencing on 1st April 2022.

Decision

The Court finds the Appellant’s complaint is well-founded and orders the Respondent to pay him the sum of €2,250.00 compensation, being the amount which the Court considers to be just and equitable in the circumstances. 

 The within appeal succeeds and the decision of the Adjudication Officer is set aside.

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.