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Summary
The Bucharest Court of Appeal has (partially) changed a decision issued by the Bucharest Tribunal and, among other things, ordered an employer to pay an employee the differences in salary rights representing bonus for overtime worked, bonus for hours worked on weekly rest, bonus for hours worked on legal holidays and bonus for hours worked at night, even in the absence of working time records.
The Bucharest Tribunal had rejected in the first instance the employee’s claim for the differences in salary rights abovementioned, on the grounds that no accounting statements were submitted in the case file showing that the employee had worked those hours.
Further, the Court of Appeal, relying on the national legislation and the case law of the CJEU (i.e., Case C-55/18, Federación de Servicios de Comisiones Obreras (CCOO) – v – Deutsche Bank SAE), ruled in favour of the employee, granting them the differences in salary rights corresponding to the above hours worked. -
Legal background
Under the Romanian Labour Code, an employer is obliged to keep daily records of the hours worked by each employee, showing the start and end times of the working hours. Moreover, it is to be noted that the burden of proof in labour disputes lies with the employer, who is obliged to submit evidence in its defence by the first day of the hearing.
In terms of working time, the Labour Code regulates that work performed outside the normal 40-hour working week shall be regarded as overtime. At the employer’s request, employees may perform overtime work, subject to the applicable legal provisions. If it is not possible to compensate the overtime by paid time off within the statutory period, overtime shall be paid to the employee by adding a bonus of at least 75% of the basic salary corresponding to its duration.
Employers may hire part-time employees under individual employment contracts of indefinite or fixed duration, known as part-time individual employment contracts. Part-time individual employment contracts include, among other things, a prohibition on performing overtime except in cases of force majeure or for other urgent work to prevent accidents or to remove their consequences.
Night workers benefit either: (a) from a reduced working time of one hour in relation to the normal working day, for days on which they perform at least three hours of night work, without this resulting in a reduction in basic pay; or (b) from an additional 25% of basic salary for night work, if the time so worked represents at least three hours of night work in relation to normal working time.
Where rest on Saturdays and Sundays would be detrimental to the public interest or to the normal conduct of business, weekly rest may also be granted on other days laid down in the applicable collective agreement or internal rules. In such a case, employees will be entitled to a wage supplement set by the collective labour agreement or, where applicable, the individual employment contract.
Employees working during legal holidays shall be provided with adequate time off during the statutory period. If, for justified reasons, days off are not granted, employees shall be granted, for work performed on legal holidays, an increase in basic pay which may not be less than 100% of the basic pay corresponding to work performed during normal working hours. -
Facts
The employee in the case at hand was employed by a company based on a part-time individual employment contract. The employer requested the employee to perform work outside the part-time norm regulated within her contract. At the same time, she worked during nights, weekly rest days and legal holidays. The employee claimed that she had not been paid the corresponding bonuses for such work, as regulated by the national law and her individual employment contract.
In this context, the employee instituted court proceedings and, among other things, asked for payment of the premiums that she was entitled to for the work performed, in accordance with the law and her employment contract.
No working time records were submitted in court by any of the parties to attest to the exact the number and nature of working hours performed by the employee. -
Judgment
The Court of Appeal, relying on the national legal provisions, stated that the performance of overtime shall be evidenced by working time records.
Furthermore, in terms of the need to keep working time records, indicating the start and end time of working hours, the Court of Appeal made reference to the case law of the CJEU, namely Case C-55/18, Federación de Servicios de Comisiones Obreras (CCOO) – v – Deutsche Bank SAE. In that case, the CJEU interpreted Articles 3, 5 and 6 of Directive 2003/88/EC concerning certain aspects of the organisation of working time, read in the light of Article 31(2) of the Charter of Fundamental Rights of the European Union and Articles 4(1), 11(3) and 16(3) of Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work, as meaning that it opposes a regulation of a Member State which, according to the interpretation given to it by national case law, does not require employers to establish a system for measuring the length of daily working time of each worker.
The CJEU held that Member States are required to take the necessary measures in order to guarantee the useful effect of every worker’s right to a limitation of the maximum working time and to daily and weekly rest periods, enabling workers to benefit effectively from the minimum daily and weekly rest periods and the maximum average weekly working time. It was concluded that, in the absence of establishing a system to measure the amount of daily working time performed by each worker, it is not possible to establish objectively and reliably either the number of hours worked and their distribution over time or the number of hours worked outside normal working hours. Each Member State is liable to define the practical arrangements for implementing such a system, in particular the form it should take, taking into account the specific features of each sector of activity concerned or the specific features of certain undertakings.
The Court held that even if the national law does not regulate the form which working time records must take (except for the requirement to indicate the start and end time of working hours) in order to give effect to the legal provisions related to rest periods working time records must be objective in nature so as to eliminate the possibility of the employer to only notionally draw up records which in fact do not take account of the actual time at which working hours began or ended. An example of an objective record of working time would be that of keeping an attendance record signed by the employee, or by automatically recording the arrival and departure times in an electronic system by means of a work access card in the employee’s possession.
Given the abovementioned, the Bucharest Court of Appeal stated that in the case of an employee who requests the Court to order the employer to pay overtime the employee cannot be held liable for the fact that no accounts or other documents relating to working time records and payment for overtime actually worked had been submitted in the case file. Moreover, according to the national legislation, the burden of proof lies with the employer, who is required to produce evidence in its defence by the first day of the hearing. As regards the number of overtime hours worked by the employee, since the employer had not proved the contrary, the Court considered the employee’s claim concerning the number and legal nature of the overtime hours worked as being proved. The remuneration system will be the one applicable in accordance with the provisions of the individual employment contract and of the national Labour Code. -
Commentary
The Court of Appeal’s ruling is welcome, especially given that the practice in our country still shows that there are employers who do not set up objective working time records, but rather only some notional ones that do not record the actual hours worked. Unfortunately, there are cases in practice in which employers keep working time records by means of electronic/paper evidence, where they indicate the start and end time of working hours based on the working schedule communicated to the employees, but not on the real and factual daily working schedule performed by the employees. This practice creates risks and leads to problems for both the employee and the employer, the employee possibly being in a situation where they are not granted all the salary rights to which they are entitled to, while the employer is running the risk of litigation before the courts and possibly being obliged to pay outstanding salary rights, plus other associated costs such as interest.
As mentioned above, working time records are closely linked with the fact of guaranteeing the useful effect of the worker’s right to a limitation of the maximum working time and to daily and weekly rest periods. Nevertheless, matters of health and safety at work and risk of work accidents should also be considered in such situations where keeping objective working time records is neglected.
More rulings like the one of the Court of Appeal in our case, and a possible more detailed regulation of the manner of keeping working time records, could be of help in combatting the employers’ tendency to establish only some notional records of working time, or even not keeping them at all. -
Comments from other jurisdictions
Bulgaria (Rusalena Angelova, Djingov, Gouginski, Kyutchukov & Velichkov): Bulgarian law (Article 149, paragraph 1 of the Labour Code) provides that employers are obliged to keep special record books for overtime work. The case law of the Bulgarian Supreme Court of Cassation (SCC) in cases where employees have brought actions against employers for payment of overtime work is rather consistent in its view that when overtime work has been performed the employer may not benefit from the fact that it has not been documented in the special record books for overtime work and not pay overtime remuneration. In fact, the SCC’s understanding stems from the legal principle ‘ex turpi causa non oritur actio’ – one cannot benefit from their own unlawful behaviour. Cases where employers have not created nor kept records for overtime work in compliance with the Bulgarian labour law provisions are infringements of such provisions and subject to additional administrative sanction. Furthermore, the actual performance of overtime work by the employee may be evidenced by other means, such as (including, but not limited to), statements by witnesses.
Denmark (Christian K. Clasen, Norrbom Vinding): Unlike in Romania, there are no statutory requirements for employers in Denmark to record the actual hours worked by employees. We are still waiting to see which legislative initiatives will be taken because of Deutsche Bank (C-55/18). In that case, the ECJ ruled that the Member States are required to set up a system enabling the duration of time worked each day by each worker to be measured, cf. Article 6(1) of Directive 2003/88. So far, and as far as we know, no cases regarding this requirement have been brought before the Danish courts, and it is expected that the introduction of the requirement for employers to set up a time keeping system will most likely need to be enacted by law.
Even though such a requirement has not been enacted, it does not change the fact that employers may incur liability if an employee’s average weekly working time exceeds 48 hours calculated over a reference period not exceeding four months. However, according to national case law, it is for employees to discharge the burden of proving that there has been a breach in order to be awarded compensation.
The matter of overtime pay has not yet been connected to the requirement of setting up a time keeping system in a Danish context. In practice, most employers have some form of time keeping system in order to track and handle overtime pay, time off to counterbalance overtime, holiday, etc. Problems regarding the tracking of working hours might especially occur in relation to employees who do not receive overtime pay, typically white-collar employees, and/or employees who are able to freely organize their own tasks and working hours due to the nature of their job.
This was the situation in a recent case before the Eastern High Court. The case concerned a marketing manager who was not entitled to overtime pay and who had the freedom to organize her tasks and working hours quite freely. Consequently, the dispute in this case did not concern overtime pay, instead the employee claimed that she was entitled to compensation because she had worked between 50-55 hours a week on average during her employment – which is more than the limit permitted under Article 6 of Directive 2003/88 and the national act implementing this Directive. Her estimate was based on the assumption that she had worked five days a week continuously from 8:30 am until her last sent email. The employer did not agree with this description and stated that there was no justifiable explanation as to why she should have worked as much as she claimed. The District Court ruled in favour of the employee, awarding her compensation.
The Eastern High Court, however, did not find that the working time statements constituted sufficient evidence that the marketing manager had had an average working week exceeding 48 hours calculated over a reference period of four months. According to the High Court, the statements were not a true and fair way of calculating the marketing manager’s working time.
The High Court also attached importance to the fact that the marketing manager had organized her own working time; that her working time information was not supported by any witness statements; and that she had not at any time pointed out to management that she allegedly worked more than 48 hours per week on a regular basis. Finally, the High Court did not find that there were grounds for taking into account that the employer had imposed on the marketing manager an obligation to work or be available to an extent causing the number of working hours claimed by the marketing manager. Accordingly, the High Court found in favour of the employer and dismissed the marketing manager’s claim for compensation for breach of the 48-hour rule.
The above principle regarding burden of proof will presumably continue both in regard to compensation for breach of Directive 2003/88 and overtime pay. However, a requirement for employers to register employees’ working hours is likely to have a significant impact on such cases in the future.Germany (Lea Althof, Luther Rechtsanwaltsgesellschaft mbH): The judgment of the Romanian Court is not in line with a recent decision of the German Federal Labour Court (judgment of 4 May 2022 - 5 AZR 359/21). The German Court dismissed the claim of an employee for overtime salary due to reasons of proof. While the rejection was based on the employee’s failure to present substantially that the overtime hours worked had been requested by the employer, the Court also took a position as to the onus of presentation and burden of proof of performed overtime itself. The judges concluded that it was the employee’s obligation to present and prove their overtime working hours in detail and the employer’s request for the overtime work.
The primary reason for the divergent court decisions lies in different rules for the burden of proof. According to Romanian legislation, the employer is required to produce evidence in its defence. In Germany, in accordance with general principles, the employee bears the (graduated) burden of presentation and proof. The employee has to indicate substantially on which days and time they performed overtime work at the employer’s request. Only then does the employer have to react in a substantiated manner by presenting details about its request for overtime work. Afterwards, it is up to the employee to provide evidence. The German Court came to the conclusion that this principle does not cause undue hardship. The diligence in an employee’s own affairs requires an employee to keep records of the hours worked if they discover that they are performing unpaid overtime.
The two cases show that the different distribution of the burden of proof can lead to opposing outcomes. However, this is likely to be the exception in the future due to the employer’s obligation to set up a system enabling the duration of time worked each day by each worker to be measured. In 2019, the ECJ ruled that Directive 2003/88/EC concerning certain aspects of the organisation of working time imposes such a duty (Case C-55/18, Federación de Servicios de Comisiones Obreras (CCOO) – v – Deutsche Bank SAE). Whereas Romania implemented the Directive by regulating the employer’s obligation to record working time in the national Labour Code, there is no explicit law containing such a duty in Germany. Consequently, it has been unclear whether Germany implemented the Directive properly. Now, the German Federal Labour Court has ruled that under Section 3(2) No. 1 of the Occupational Safety Act (Arbeitsschutzgesetz) – interpreted in conformity with the European Law – the employer is obliged to introduce a system to record working time of employees (judgment of 13 September 2022 - ABR 22/21). Section 3(2) No. 1 of the Occupational Safety Act states that the employer must provide necessary means to implement necessary measures for working safety and health.
Although the Federal Labour Court emphasised before that Directive 2003/88/EC has no legal effect on the rule of evidence in salary processes, as it just regulates aspects of employees’ health and safety (judgment of 4 May 2022 - 5 AZR 359/21), the now clarified obligation to record working time will most likely have an impact on overtime compensation processes. The records will provide valuable evidence for the employee burdened with proof.Subject: Working Time
Parties: B. B. – v – Live Poker Festival S.R.L.
Court: Curtea de Apel București (Bucharest Court of Appeal)
Date: 20 January 2022
Decision number: 284/2022
Internet publication: https://bit.ly/3OeVyKu
DOI: 10.5553/EELC/187791072022007003008
European Employment Law Cases |
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Case Reports | 2022/26 The lack of evidence of working time records shall not affect an employee’s salary rights corresponding to the work performed at the employer’s request (RO) |
Keywords | Working Time, Juridisch, Arbeidsrecht, Europees recht (EU Recht) |
Authors | Andreea Suciu en Laura Dănescu |
DOI | 10.5553/EELC/187791072022007003008 |
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Suggested citation
Andreea Suciu and Laura Dănescu, "2022/26 The lack of evidence of working time records shall not affect an employee’s salary rights corresponding to the work performed at the employer’s request (RO)", European Employment Law Cases, 3, (2022):138-141
Andreea Suciu and Laura Dănescu, "2022/26 The lack of evidence of working time records shall not affect an employee’s salary rights corresponding to the work performed at the employer’s request (RO)", European Employment Law Cases, 3, (2022):138-141
The Bucharest Court of Appeal has (partially) changed a decision issued by the Bucharest Tribunal and ordered an employer to pay a claimant employee the differences in salary rights representing bonus for overtime hours worked, bonus for hours worked on days of weekly rest, bonus for hours worked on legal holidays and bonus for hours worked at night, even in the absence of working time records. |