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A scale demands overtime after his dismissal

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THE CHALLENGE

A scale was employed by a large Brussels brewery for more than twenty years.

Following his dismissal, he claims from his employer the payment of more than five thousand additional hours that he would have worked during the entire duration of his employment, the amount of which exceeds 80,000.00 EUR.

It is known that a lot of overtime is worked in the hospitality industry and that these are not always recorded.

Already in the throes of economic difficulties, the condemnation of the brewery to the sum claimed by her former worker could lead to her bankruptcy.

The burden of proof rests on the worker to prove the reality of the number of hours worked with documentation pertaining to the period concerned.

THE STRATEGY

Each person is required to prove the facts he alleges under Articles 1315 of the Civil Code and 870 of the Judicial Code.

In the field of overtime, the burden of proof, therefore, rests on the shoulders of the worker who must prove the reality and the number of hours concerned, with the necessary documents relating to the period concerned.

After carefully examining the brewery’s documentation, the following inconsistencies were¬†highlighted:

  • The schedules on which the scale based its request were provisional schedules that were given to workers at the beginning of the month, unlike the actual schedules communicated to workers five days before the start of services in accordance with the work regulations. The value of the forecast schedules could therefore only be indicative. The brewery produced, for her part, the actual schedules relating to a few months of services, and proved that the hours mentioned on these schedules corresponded to those shown on the payslips.
  • The one-sided count produced by the scale was not sufficiently substantiated and corroborated. In fact, this count was the product of an extrapolation made from documents covering a work period of eight months of employment, over a total period of 23 years.
  • The scale had never claimed payment for a single extra hour during the working relationship and thus claimed to have worked a total of 5,274.12 hours of overtime over a period of 23 years, which he only decided to claim once a dispute arose with his employer.
The careful and meticulous analysis of the documents in the worker's file allowed us to reveal decisive inconsistencies.

THE OUTCOME

After taking into consideration the inconsistencies in the worker’s file, the Tribunal found that the worker did not provide proof of the overtime claimed.