Background:

The Complainant, a delivery driver for the Respondent wholesale food importer, raised a number of complaints in respect of his employment from 6 February 2017 to 10 August 2020. These included a complaint of penalisation under the Safety, Health and Welfare at Work Act 2005; an unfair dismissal claim under the Unfair Dismissals Act 1977; a claim he did not receive the national minimum wage due to the excessive hours worked under the National Minimum Wage Act 2000; a working time claim under the Mobile Road Transport Regulations 2012; and claims under the Organisation of Working Time Act 1997 that he worked too many hours each week on average and did not receive breaks during the course of the working day. The Complainant provided oral evidence in respect of these complaints. He also provided photographs of him counting cash in the evening, bank account records showing additional pay from his employer to show Saturday work, and WhatsApp messages which showed communication between the Complainant and representatives of the Respondent company.

The Respondent denied all the complaints made. They stated the Complainant’s hours were from 7 am to 5 pm, and he was provided all necessary equipment to do the role. They said it was the Complainant’s responsibility to take the breaks to which he was entitled and said the complaints regarding working time breaches were fabricated and false. Crucially, the Respondent did not have working time records, although they did produce weekly records from which wages were paid and tracking information from its vans.

Outcome:

The Adjudicator, noting the lack of evidence provided by the Complainant which would be required to substantiate the claims made, dismissed nearly all the complaints made as not well-founded. The only exception to this were the claims under the Organisation of Working Time Act 1997. In those claims the burden of proof is switched from the Complainant to the Respondent. The Respondent is presumed to have breached the law unless they can provide records showing compliance, and the tracking and payroll records provided were insufficient for this purpose. The Adjudicator awarded €7,500 in respect of excessive weekly working hours and an additional €7,500 in respect of the failure to ensure the Complainant received rest during working time, for a total award €15,000, given the seriousness of the breach, the importance of regulated working time, and the importance of rest for those doing physical work and driving long distances.

Practical Guidance for Employers:

Employers are often well-placed to defend claims where the “burden of proof” is on the employee, but this is switched for working time complaints. If an employee alleges a breach of the Organisation of Working Time Act 1997, the employer is presumed to have breached the Act unless they can show records which meet the standard set out in section 25 of that Act and which shows the employee has not breached the Act. Awards under this Act can be substantial and good records are essential.

To read the full case please click here: https://www.workplacerelations.ie/en/cases/2023/june/adj-00031563.html