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Latest in Employment Law>Case Law>Nyazika v Dzumbira [2011]
Nyazika v Dzumbira [2011]
Published on: 22/07/2011
Issues Covered: Pay
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Background

The claimant in this case was employed by the respondent as a child minder and she also undertook general housework. Fundamental conflicts of evidence were central to this case. The claimant gave evidence that she was employed from 2nd February 2004 to 6th May 2009 and that her employer persistently failed to pay her the national minimum wage taking allowable deductions for board and lodging into account. Specifically, she claimed that she was initially paid €200 per month and that this sum was increased by €50 at six monthly intervals so that by the time her employment ended, she was being paid €500 per month. She claimed that a €60 deduction per month was made in respect of board and lodging.

The respondent on the other hand told the court that she initially paid the claimant €150 per week from which €60 was deducted for board and lodging. This was later increased to €190 per week with the same deduction in respect of board and lodging. However, the respondent also claimed that the employment relationship came to an end as far back as May 2005 when the claimant’s work permit came to an end. She accepted however that the claimant continued to reside with her as a guest and undertook some housework during this time in return for the provision of accommodation. 

The Court’s conclusions: The Court noted that neither party seemed to be in a position to provide corroboration of their evidence but it considered the evidence provided by the claimant to be more credible on the question of the duration of the employment. No doubt the fact that the respondent accepted that the claimant continued to reside with the respondent at all material times influenced this finding. As regards the conflict of evidence on the amount of payment, the Court first noted that there was an acknowledged substantial underpayment even during the period during which the respondent conceded that there was a contract of employment in existence. 

It also noted that the respondent kept no records of hours worked or amounts paid despite being obliged under Section 22 (1) of the National Minimum Wage Act to do so. It stated that it was in turn obliged to apply Section 22 (3) of the Act which in effect provides that where an employer does not keep records showing compliance with the Act, the onus of proof will be on that employer in any claim brought under the Act by an employee to otherwise show compliance. The Court concluded that it had not found the evidence tendered by the respondent more convincing than that provided by the claimant on the question of payments. Consequently, it must accept the evidence of the claimant.

Finally, the Court noted that the Rights Commissioner, against whose decision the respondent was appealing, had undertaken a careful calculation of the amount due and owing and no issue had been taken with its mathematical accuracy. It therefore affirmed the finding that the claimant was due the sum of €51,523 in arrears of minimum wages and ordered that it be paid within six weeks.

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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 22/07/2011
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