TSJ Valladolid 13-10-16
If the employer fails to comply with his duty to provide the summary of the workday record requested by the worker to prove overtime, the harmful consequences of this failure cannot be imposed on the worker, so the worker is recognized as having the right to charge. the hours claimed.
After the termination of his contract, the worker demands payment from the company for overtime hours worked in the last year. In the instance, the company is acquitted and the worker appeals, alleging that the employer has violated the duty to provide the workers with a copy of the summary of the day worked (ET art.35.5).
Consolidated jurisprudence places on the worker the burden of proving the realization of the claimed overtime, requiring strict and detailed proof of its compliance, each of which must be demonstrated day by day and hour by hour to establish with complete precision its circumstances and number (TS 7-22-14, EDJ 180105; TS 1-21-91, EDJ 496).
Although it is the worker who must prove overtime work, the employer must use a registration system so that there is documentary control
However, recent pronouncements have considered that the employer has the obligation to use some system that allows for a daily record of the work day to provide the worker with a means of documentary evidence to prove the performance of overtime (AN 4-12- 15, EDJ 238144).
In this way, it is essential to combine the jurisprudence that places the burden of proving overtime on those who claim overtime with the principle of ease of proof. In this case, given that the worker was interested in requiring the company to record entries and exits for the claimed period and that it only provided the record for the last month, the harmful consequences of the company's non-compliance cannot be placed on the worker. Therefore, the worker is recognized as having the right to collect the hours claimed.