FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : PEADAR KELLY LANDSCAPING LIMITED (REPRESENTED BY JOHN BOLGER) - AND - ZBIGNIEW GURGUL (REPRESENTED BY O ' BRIEN & ASSOCIATES) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner’s Decision r-074735-wt-09/JC
BACKGROUND:
2. The Worker claimed that he did not always get a rest period after normal working time and before starting overtime hours as is required by law. In light of the direct conflict of evidence the Rights Commissioner found that on the balance of probabilities and in the absence of proper records she would award the Worker the sum of €800.00 in compensation.
The Employer 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 17th September, 2009. The Court heard the appeal on the 14th September, 2010.
WORKER'S ARGUMENTS:
3. 1. Rest periods were not always given especially after normal working time, The Worker had made his grievances known to Management when he complained to the owner's son, but this fell on deaf ears.
EMPLOYER'S ARGUMENTS:
4. 1. The Worker was always treated fairly and was always allowed his statutory breaks after normal working time, in fact the Employer provided food for the Worker on occasions when little notice of overtime could be given.
2.The Worker never made any complaints concerning the way he was treated while in the employment of the Company.
DETERMINATION:
The Complainant, Mr Zbigniew Gurgul, represented by Kieran O’Brien, O’Brien and Associates Solicitors, submitted a complaint to the Rights Commissioner pursuant to Section 12 of Organisation of Working Time Act 1997 (the Act). He alleged that his Employer, Peadar Kelly Landscaping Ltd (the Respondent) had failed to provide him with statutory breaks on days when he was required to work overtime. The Respondent rejected the complaint.
The Rights Commissioner considered the complaint and found “on the balance of probability” for the complainant and awarded him €800 compensation for breach of his statutory entitlements. It is this Decision that has been appealed by the Respondent.
Mr John Bolger P.C. HR/IR Mediation / Consultation Service on behalf of the Respondent submitted that the Complainant had been afforded all statutory breaks to which he was entitled. He admitted that the Respondent did not maintain records in the prescribed manner contrary to Section 25 of the Act. He further submitted that the Complainant, largely on the same facts, had without success prosecuted several complaints under various Statutes against the Respondent. In each of these cases, he submitted, the documentation maintained by the Respondent had demonstrated that there was no merit in the Complainant’s case. He submitted that the Court should draw the conclusion that the evidence of the Complainant was unreliable and should reject it. On the balance of probability the Court should find for the Respondent and reverse the Rights Commissioner’s Decision.
The Complainant submitted that the Respondent had failed to maintain records in the form prescribed byS.I. No. 473/2001 — Organisation of Working Time (Records) (Prescribed Form and Exemptions) Regulations, 2001. He submitted that Section 25 (4) of the Act provides
(4) Without prejudice tosubsection (3), where an employer fails to keep records undersubsection (1)in respect of his or her compliance with a particular provision of this Act 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.
He submitted that the respondent had failed to offer any evidence that would prove that he had complied with the provisions of Section 12 of the Act and accordingly the Court must reject the appeal and affirm the Decision of the Rights Commissioner.
Findings of the Court:
The Court finds that the Respondent failed to maintain records in the prescribed format and consequently, pursuant to Section 25 of the Act, the onus of proving compliance with Section 12 of the Act fell on him. No evidence was presented to the Court that discharged this onus. Accordingly the Court rejects the appeal and upholds the Decision of the Rights Commissioner.
The Court so Determines.
Signed on behalf of the Labour Court
Brendan Hayes
8th October, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.