SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
PRIME STEAK LIMITED TRADING AS RUSTIC STONE
- AND -
JOSE CANO RUIZ
Chairman: Ms Jenkinson
Employer Member: Ms Cryan
Worker Member: Mr Shanahan
1. Appeal against Rights Commissioner's Decision r-140880-wt-13/GC.
2. 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 5th August, 2014. The Court heard the appeal on the 1st October 2014.
This is an appeal by Prime Steak Limited trading as Rustic Stone against a Rights Commissioner’s Decision, no: r-140880-wt-13/GC. Former Employee Mr Jose Cano Ruiz lodged a complaint under the Organisation of Working Time Act 1997 (the Act) alleging breaches of Sections 11, 12, 15 and 23 of the Act. The Rights Commissioner held in his favour and awarded Mr Ruiz the sum of €1,000. The Employer appealed the Decision to this Court.
The Employer did not attend before the Rights Commissioner.
For ease of reference the parties are referred to as they were at first instance. Hence Mr Jose Cano Ruiz is referred to as “the Complainant” and Prime Steak Limited trading as Rustic Stone is referred to as “the Respondent”.
The Complainant submitted a claim under the Act to the Rights Commissioner on 18thDecember 2013.
The Complainant was employed by the Respondent as a Chef de Partie from 31stOctober 2013 until 19thNovember 2013. He submitted to the Court that he worked from 10.00am until 11.30pm each day, five days per week. He claimed that he did not receive any breaks when he worked on Saturdays or Sundays. He claimed that he worked an average of 65 hours per week and that he had not been paid annual leave on the cesser of his employment.
The Respondent contested the allegations and stated that the Complainant worked a split shift on weekdays, from 10.00am – 3.00pm and 5.30pm – 10.30pm. At weekends he worked from 1.00pm until 10.00pm. It maintained that in respect of the three weeks worked by the Complainant he worked 45.5 hours in week one, 46 hours in week two and only 8 to 10 hours in week three. The Respondent stated that the Claimant’s finishing times were not later than 11.00pm. It stated that he was paid €280.00 on 18thNovember 2013 in respect of outstanding annual leave and that this exceeded his statutory entitlement.
Having considered the submissions made by both parties, the Court was not presented with coherent evidence by the Respondent on the contentions made nor was it provided with sufficient and appropriate documentation to substantiate its position. The Respondent sought permission of the Court to submit further information however, no further information was furnished to the Court.
Section 25(4) of the Act provides, in effect, that where an Employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before the Court the onus of proving compliance with that provision lies with the employer. In this case the Court is satisfied that the Employer has failed to maintain adequate records to show that the Act was complied with in respect of the Complainant and thus carries the burden of rebutting the evidence given by the Complainant.
The Court has considered all the evidence before it in this case and finds that the Respondent has failed to prove, on the balance of probabilities that it complied with the Act in respect of the Complainant. Accordingly, the Court finds that the complaints made alleging breaches of Section 11, 12 and 23 of the Act are well-founded.
As the complaint alleging a breach of Section 15 of the Act cannot be assessed in this case over a reference period of four months the Court does not uphold that claim.
In all the circumstances of this case the Court upholds the Rights Commissioner’s Decision to award the sum of €1,000 and hereby orders the Respondent to pay the Complainant that sum within a period of six weeks from the date of this Determination.
Therefore the Court upholds the findings of the Rights Commissioner’s for the most part and upholds his Decision to pay the sum awarded.
The Court so Determines.
Signed on behalf of the Labour Court
28th October, 2014______________________
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.