<
Latest in Employment Law>Case Law>Circus Gerbola Limited v Chtabbou [2012]
Circus Gerbola Limited v Chtabbou [2012]
Published on: 29/08/2016
Issues Covered: Contracts of Employment Working Time
Article Authors The main content of this article was provided by the following authors.
Legal Island
Legal Island
{}
Background

The claimant in this case was a Moroccan national recruited in 2003 by way of a work permit to work for the respondent’s circus. His employment ended on 6th April 2009, following a dispute over his accommodation. On 21st July 2009 he initiated a claim under the OWT Act to a Rights Commissioner (RC) alleging a number of breaches, namely: 

* failure to provide adequate rest breaks and weekly rest; 
* failure to pay a premium for Sunday work; 
* requiring him to work in excess of an average of 48 hours per week; and 
* failure to provide paid annual leave and public holiday entitlement. (Note that this complaint was heard in tandem with a similar complaint made by a work colleague and both claimants also brought claims that their employer had infringed the terms of the National Minimum Wage Act 2000). 

The RC found in his favour under the OWT Act on all but one ground; she did not accept that he worked in excess of 48 hours average per week. He was awarded €4000 in compensation. The respondent appealed this finding to the Labour Court and the claimant cross-appealed the maximum working hours' issue.

On appeal, the Labour Court first considered a preliminary issue of how far back into his employment the claimant could go in alleging contraventions of the legislation. Although the claimant maintained that his rights under the legislation had not been adhered to from the outset, Section 27 (4) of the Act makes it clear that a claim must be brought within six months of the alleged (or the latest) contravention. 

The claim had been lodged on 21st July, some three and a half months after the termination of the claimant’s employment on 6th April. The Court found that the RC had correctly determined that only contraventions that had occurred in the six months prior to the presentation of the claim were ‘cognisable’ for the purposes of potential redress, i.e. between 22nd Jan and 21st July 2009. However, the RC had exercised her discretion to extend the cognisable period on grounds of reasonable cause by a further six months, thus encompassing infringements back to July 22nd 2008. The respondent argued that his extension was not justifiable.

The Court examined its previous determinations on the issue of reasonable cause, in particular its decision in the case of Cementation Skanska and Carroll (WTC 033, 28th October 2003), that the claimant must show that there are reasons which both explain the delay and afford a reasonable excuse for it. In turn, there must be a causal link between the circumstances cited and the fact of delay. 

While ignorance of one’s legal rights is generally not an excuse for failing to present a claim on time, the Court concluded that this case was exceptional. The claimant alleged that the respondent retained his passport and that he was fearful of the consequences of complaining about his working conditions. He had a poor command of English and little contact with persons outside the circus community and so had no realistic opportunity to inform himself of his statutory employment rights. It was only when he made contact with the Migrant Rights Centre that he became aware of his entitlements. In these circumstances, the Court was satisfied that there was reasonable cause for extending time by a further six months (though it noted that the RC had the power to extend it by 12 months).

Turning to the substantive issue of the alleged infringements of the Act, the Court reiterated its position that the claimant must first bring evidence to support ‘a stateable case of non-compliance’ with the Act. The respondent must then put its records of compliance under S.25 in evidence. If these are not produced, it will be for the respondent to establish on other credible evidence that the Act was complied with. 

In this case, the respondent acknowledged that it had not kept the requisite records and so the burden of proof fell upon it to show that the complaints of the claimant were not well founded and that it had complied. The Court noted that there were considerable conflicts of evidence between the respondent on the one hand and the claimant and a corroborating witness on the other, in relation to both hours worked and duties performed. However, one salient fact was admitted by the respondent; the claimant never received any paid annual leave during his employment. On balance therefore, the Court was not satisfied that the respondent had rebutted the ‘presumption of non-compliance’. 

On the question of the breach of the provisions relating to maximum hours, the Court did not accept that the claimant worked the average of 77 hours per week he had claimed. However, it did conclude doing the best it could with the available evidence that he worked 50 hours on average per week. Accordingly it found that the rule on maximum hours had been breached. It therefore increased the award of compensation to €4500. Finally, it should also be noted that the claimant was also awarded almost €23,000 in respect of breaches of the National Minimum Wage Act 2000.

Continue reading

We help hundreds of people like you understand how the latest changes in employment law impact your business.

Start your free trial now
Subscribe, or start free trial →
Already a subscriber?

Please log in to view the full article.

What you'll get:

  • Help understand the ramifications of each important case from NI, GB and Europe
  • Ensure your organisation's policies and procedures are fully compliant with NI law
  • 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
  • Receive free preliminary advice on workplace issues from the employment team

Already a subscriber? Log in now or start a free trial

Subscribe or start free trial
Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 29/08/2016
Recent Case Law
Q&A
How to handle it
Legal Island’s LMS, licensed to you Imagine your staff having 24/7 access to a centralised training platform, tailored to your organisation’s brand and staff training needs, with unlimited users. Learn more →