Under Section 25 of the Organisation of Working Time Act, 1997 an employer is obliged to keep certain records related to working time of its employees:
“An employer shall keep … such records … as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making”
Such records include details of working time, rest periods, annual leave and public holidays.
Where an employer fails to keep records of the working time of his or her employees in the manner prescribed under the legislation, this will mean that the burden of proving compliance will shift to the employer.
This burden is a very onerous one.
Even in the case of only an employee’s personal testimony, and no other evidence being provided by the employee, an employer who does not have records of the working time of employees will find it difficult to satisfy the employment courts that they, the employer, have fulfilled their obligation under the Act.
Working Time – Labour Court Case
In a Rights Commissioners case, which was appealed by the claimant to the Labour Court, the claimant was employed as a shop assistant and stated that, during her employment, her employer breached various terms of the Organisation of Working Time Act specifically failure to provide appropriate daily breaks, failure to provide additional compensation for working on Sundays, failure to provide paid annual leave, and failure to provide public holiday entitlements.
The complaints were heard by the Rights Commissioner who decided they were not well founded.
However, the claimant appealed to the Labour Court.
The Labour Court heard totally oral evidence from the claimant and the company which was contradictory to one another.
It then referred to the fact that the company had not kept appropriate records and noted:
“…in the absence of electronic recording systems the records must be signed by the employer and the employee and a copy of the records furnished to the employee for retention by him/her. It is self-evident that proper records are of central utility in defending a claim of non-compliance …”
In this case, where the Court was faced with directly opposite evidence from both sides, and where there was no independent or factual evidence, the Court concluded that the company had not satisfied its burden of proof under the Act.
Implications for Employers
Failure to keep records in the prescribed form is most likely to be fatal in any case where the employer is defending itself against a claim for breach of the Organisation of Working Time Act, whereas the presence of records which show compliance will provide the employer with a watertight defence.
Case: Rezmerita Ltd v Uciechowska, Labour Court, 2010