SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
- AND -
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS)
Chairman: Mr Hayes
Employer Member: Mr Murphy
Worker Member: Mr Nash
1. Appeal against a Rights Commissioner's Decision wt51371/07/MR.
2. The Complainant commenced employment in January 2005 and continued in the position for the next 27 months. It was always his belief that he was employed by the Respondent during that time. The Respondent has always maintained that the Employer was in fact a limited company. The dispute was heard by a Rights Commissioner who issued the following Recommendation:-
"...on the balance of probabilities, the claimant had not been employed by either of the individual respondents..."
The Employee appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997 on the 22nd July, 2009. The Court heard the appeal on the 26th May, 2010.
The case comes before the Court pursuant to Section 28(1) of the Organisation of Working Time Act 1997 (the Act). The Complainant, Mr. Audrius Zymancius, was appealing a Decision of a Rights Commissioner to the effect that the Respondent, Mr. Dermot O'Brien, was not his Employer for the purposes of the Act.
The Respondent, Mr. Dermot O'Brien, denied that he was Mr Adrius Zymancius's Employer and consequently submitted that he could have no claim to answer under the Act. He submitted that Mr Zymancius was employed by DKR Construction Ltd. He produced no records to support this contention.
Ms. Aoife Marrinan, Solicitor, submitted that her Client, Mr. Zymancius, considered Mr. O'Brien to have been his employer and that he regularly received his wages by way of personal cheque drawn against an account in Mr. O'Brien's name and signed by him. However, Ms. Marrinan was not in a position to produce any documentary evidence that would indicate that Mr. O'Brien was Mr. Zymancius's Employer including a copy of any such alleged cheque.
A single piece of evidence was submitted to the Court by Ms. Marrinan in this case. This consisted of a list of P35 L's for the period 1st January 2006 to 31st December 2006. The list indicated that Mr. Zymancius was employed by DKR Construction Ltd.
The Court allowed the Complainant an extended period of time to produce documentary evidence that would support his contention that Mr. O'Brien was his employer. No evidence to this effect was submitted to the Court.
The Court is satisfied that the burden of proving that Mr. O'Brien was the Employer falls on the Complainant in this case. The single piece of documentary evidence submitted by Ms. Marrinan on behalf of the Complainant does not support his claim that Mr. O'Brien had been his Employer. To the contrary, the document indicates that Mr. Zymancius was employed by DKR Construction Ltd.
As the Complainant has failed to satisfy the Court that Mr O'Brien was his Employer the Court dismisses the appeal and upholds the Decision of the Rights Commissioner.
Signed on behalf of the Labour Court
24th August, 2010______________________
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.