SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
BALLYBOFEY OIL COMPANY LIMITED
- AND -
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Ms Ni Mhurchu
1. Appeal Against Rights Commissioner's Decision R-036949-Wt-05/Tb
2. The Company appealed the Rights Commissioner's decision to the Labour Court on the 10th of May, 2006, in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 7th of March, 2007, in Donegal. The following is the Court's determination:
This matter came before the Court by way of an appeal by Ballybofey Oil Company Limited (the Respondent) against the Decision of a Rights Commissioner by which the Claimant was awarded compensation in the amount of €630 in his claim against the Respondent. The claim arose from the alleged failure of the Respondent to provide the Claimant with annual leave and payment for public holidays in accordance with the Organisation of Working Time Act, 1997.
The Claimant was employed as a driver by the Respondent and made deliveries to customers. The customers were provided with a docket confirming acceptance of a delivery and this was signed by the Claimant and the customer. A copy of the docket was retained by the Claimant and returned to the Respondent. The Respondent contended that the Claimant took days off from time-to-time for which he was paid and which were treated as annual leave. Dockets were produced to the Court and it was submitted that days in respect of which there were no dockets were days of annual leave. The Respondent accepted that it did not maintain records of annual leave apart from the dockets.
The Claimant denied that he received days off with pay. He told the Court that he had worked on the days which the Respondent claimed had been days of annual leave. He said that he had completed dockets in respect of deliveries made on those days which, he submitted, should be in the possession of the Respondent.
Conclusions of the Court
The Respondent failed to maintain records in relation to the claimant's annual leave and public holiday entitlements as is required by S.I. No. 473 of 2001: Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations2001. Section 25(4)of the Act provides, in effect, that where records are not kept in the prescribed form the onus of proving, in proceedings before this Court, that the provisions of the Act have been complied with in respect of the claimant rests on the employer.
In this case the Court was faced with a direct conflict of uncorroborated evidence between the Claimant’s version of events and that of the Respondent. The Court does not accept that the dockets produced by the Respondent are corroborative of its evidence. They merely show that days on which the Claimant worked but do not amount to evidence of the days on which he did not work or the reason as to why he may not have worked on particular days.
The Respondent bears the burden of proving compliance with the Act. The Court is satisfied that that burden has not been discharged. Accordingly, the Claimant is entitled to succeed and the appeal must be disallows.
Having regard to all the circumstances of this case the Court is satisfied that the award made by the Rights Commissioner is adequate. It is the Determination of the Court that the Respondent pay to the Claimant compensation in the amount of €630 in respect of its failure to provide the Claimant with annual leave and public holidays due to him under the Act.
Signed on behalf of the Labour Court
29th March, 2007______________________
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.