SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997
ANDRZEI GERA T/A FAMILY BAKERY SAMO ZDROWIE
(REPRESENTED BY ROSTRA SOLICITORS)
- AND -
(REPRESENTED BY RICHARD R. O' HANRAHAN SOLICITORS)
Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham
1. Appeal of Rights Commissioner's Decision r-136547-wt-13/MH.
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on 1st October, 2014. A Labour Court Hearing took place on 16th September, 2015. The following is the Labour Court's Determination:
This is an appeal by Andrzej Gera t/a Family Bakery Samo Zdrowie against a decision of a Rights Commissioner in a claim by Justyna Malecka under the Organisation of Working Time Act 1997 (the Act).
In this Determination the parties are referred to as they were at first instance. Hence, Mr Gera is referred to as the Respondent and Ms Malecka is referred to as the Claimant.
The Claimant commenced her employment with the Respondent in her capacity as a baker on or about 3rdFebruary 2013. She contends that she was required to work significantly in excess of 48 hours per week in contravention of s.15 of the Act. The Respondent denied that the Act had been contravened in the manner alleged. It is the Respondent’s case that the Complainant worked no more than 30 hours per week.
The claim was presented to the Rights Commissioner on 8thAugust 2013. Consequently, the cognisable period for the purpose of the within claim in the period commencing on 9thMarch 2013 and ending on the 28thJuly 2013 (the date on which the employment ended).
The Respondent accepts that he did not maintain working time records in the statutory form. Consequently, in accordance with s.25(4) of the Act the burden of proving compliance with the Act rests with the Respondent.
The Court heard oral evidence from the Claimant and from the Respondent.
In her evidence the Claimant told the Court that she worked with her partner (who is the Claimant in a related case against the Respondent herein). Her partner maintained a diary in which their starting and finishing times were recorded each day. Copies of the diary were put in evidence. It was the Claimant’s evidence that she regularly commenced work at 8pm and worked up to 8am or 9am the following morning. Her weekly working hours varied and in one week extended to 98 hours.
The Claimant told the Court that an inspection was carried out at her workplace by the National Employment Rights Authority (NERA) for the purpose of measuring compliance with the Act. For the purpose of the inspection she was instructed by the Respondent to complete time sheets. She completed these sheets (which were put in evidence) but the working hours recorded were dictated by the Respondent and did not accurately reflect her actual working time. According to the Claimant, the Respondent told her that if she did not complete these sheets as directed she would lose his employment and could be deported. The Claimant was referred to pay slips on which hours of work were recorded. Her evidence was that these pay slips did not accurately record the hours that she worked.
The Respondent gave evidence in which he claimed that the Claimant had entered into an agreement whereby she would work 7 hours per day. He said that the arrangement was that 5 of these hours would be paid for and the additional two hours were to offset the cost of accommodation and transport.
The Respondent referred to the timesheets put in evidence. He said that these time sheets accurately recorded the number pf hours that the Claimant worked and showed that her average working week was 30 hours (excluding the additional hours worked in respect of accommodation and transport).
The Respondent evidence was that the Claimant commenced work at 9pm and finished working at 4am on the following day. He accepted that the time sheets recorded the Claimant’s starting time at 2am and finishing at 7am the following day. According to the Respondent, the Claimant finished work at 4 am and remained on the premises until 7am in order to avail of transport home. The Respondent accepted that the time sheets upon which he relied did not accurately record the Claimant’s starting and finishing times. He said that he had been advised that the period between 4am and 7am, when the Claimant left the premises, would be regarded by NERA as working time and the times shown on the sheets were adjusted for the purpose of showing compliance with the Act. He told the Court that while the starting and finishing times were inaccurately recorded the actual working time was accurate.
The Respondent accepted that he did not prepare the pay slips and these were created by his accountant.
This case turns entirely on which version of events is accepted by the Court. The Claimant’s evidence, if accepted, indicates that serious and persistent contraventions of s.15 of the Act occurred. The Respondent’s evidence is a traverse of the Claimant’s account of her working time and, if accepted, indicates that the Act was not contravened.
In evaluating the evidence adduced the Court found the Respondent’s testimony unreliable in all material respects. By contrast, the Court has concluded that the Claimant gave honest evidence to the best of her recollection. The Court also accepted that this evidence was corroborated by the diary entries maintained by the Claimant’s partner, the accuracy of which is also accepted.
Accordingly, the Claimant is entitled to succeed in her claim and the decision of the Rights Commissioner in that regard is affirmed.
While no cross appeal was taken by the Claimant, in ade novohearing of the case the Court is obliged to form its own view on the adequacy of the compensation that is fair and equitable in the circumstances.
In considering that question the Court has taken account of the extent to which the Act was contravened and the particularly serious nature of those contraventions. Having regard to all of the circumstances prevailing the Court measures the amount of compensation that is fair and equitable in this case at €10,000, the Claimant is awarded compensation in that amount.
The appeal is disallowed and the Rights Commissioner’s decision is varied in terms of this Determination.
Signed on behalf of the Labour Court
24th September, 2015______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.