2023-09-02 09:33:52
He Superior Court of Justice of Catalonia (TSJC) has returned to endorse that a employee can collect the overtime made if the company does not contribute he time register of their day, mandatory since 2019. The magistrates, thus, have reviewed a sentence of April 2022 of the Social Court number 2 of Granollers (Barcelona) which he dismissed the employee’s request because he understood that had not been accredited the existence of these extra hours when the hourly record is not provided to the cause.
«It corresponded to the employer contribute to the actions the daily record of the plaintiff’s working day for the purposes of accrediting the completion of the postulated overtime hours, administration of the time record that constitutes a legally obligated established for the employer, not being able to result in their benefit -leaving the claimant worker without proof- the breach of this legal obligation and, therefore, corresponding to the defendant la test load as for the hours actually worked”, ruled the magistrates.
The judgment advanced by ‘El Confidencial’ recognized the plaintiff – hired since July 2019 as a “full-time laborer” – the performance of 1,250 overtime hours between July 2020 and June 2021, and has ordered his employer to pay him 15,212.5 euros plus 10% of late payment interest (in total, 16.733,75 euros). The resolution of June 26, of course, is not firm and the employer had the possibility of imposing a cassation appeal for the unification of doctrine before the social room of the supreme court.
Arguments
The judgment of the TSJC recalls that the court of Granollers rejected the request of the worker with the argument that the performance of overtime hours had not been “accredited, since no evidentiary support is provided that allows them to be accredited”. The only evidence that was provided, he adds, was the documentation which facilitated the employee, since the employer did not even provide the record mandatory schedule that was requested nor could he be interrogated in the trial to “not having appeared there unjustifiably».
The magistrates admit that the Granollers judge made a “complete and precise review of the current jurisprudential doctrine so far and which, briefly stated, moves the burden of proof the performance of overtime hours at employee». Likewise, they emphasize that the judge relied on the jurisprudence which states that to formulate the overtime claim “they must set precisely the number and the circumstances of each of these”.
However, the judgment of the TSJC states that the modification of the Workers’ Statute which was approved in March 2019 to oblige companies to keep a control and time record of the working day meant a “copernican turn regarding the burden of proof of overtime work when the employer fails to comply with this obligation”. It is not the first time that it has determined this: the court remembers that it already issued similar sentences in 2021 and at the beginning of 2023.
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