FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : PAIRC NUA TEORANTA - AND - LIGITA BARTUSEVICA (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Notice Of Appeal Of Decision Of A Rights Commissioner R-019712-Mw-04/Jt
BACKGROUND:
2. The matter before the Court concerns an appeal of a Rights Commissioner's Recommendation. The Union sought documentation relating to the Claimants pay and hours of work from the Company in May, 2004. The Union claims that the worker was not paid for the amount of hours she worked and that the pay reference period is difficult to determine. The Company maintain that they have done no wrong by the Claimant. A first Rights Commissioner hearing was scheduled for February, 2005. This hearing was adjourned on the day. Both parties offer conflicting evidence as to why the Rights Commissioner did not reconvene the hearing until March 2007.
The Rights Commissioners Recommendation is as follows:
"I have considered the arguments and documentation presented to me. I accept that the respondent was in compliance with the Agricultural Employment Regulation Order, therefore I do not find the claim well founded, therefore it falls"
The Union appealed the decision to the Labour Court on the 20th February, 2008, in accordance with Section 27(1) of the Act. A Labour Court hearing took place on the 16th April, 2008.
UNION'S ARGUMENTS:
3. 1 The hours of work recorded by the Claimant do not correspond with the payslips she received. The Claimant is short over €7,000.
2 The Company did not supply any information regarding the Claimants hourly rate of pay for the pay reference period as required under the National Minimum Wage Act, 2000, when requested to do so by the Union.
COMPANY'S ARGUMENTS:
4.1The findings of three separate Labour Inspectors and a ruling of a Rights Commissioner all support the fact that the Company did no wrong to the Claimant.
2The only documentation submitted by the Claimant to support her claim was indecipherable and manufactured four years after the fact.
DETERMINATION:
The Court was furnished with records maintained by the Company which, on their face, show that the Act was complied with in relation to the Claimant. The Court is satisfied that these records comply with s.22 of the Act. In these circumstances the onus is on the Claimant to show, as a matter of probability, that the records are not a true reflection of the hours which she worked.
The Court was faced with a direct conflict of evidence on this point. Having regard to the fact that the onus is on the Claimant, the Court cannot accept that her evidence and the records upon which she relied go far enough to establish that the records produced by the company should be rejected.
Accordingly the Court agrees with the Rights Commissioner that this claim fails. The Decision of the Rights Commissioner is affirmed and the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
2nd May, 2008______________________
DNChairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.