Proving Overtime: Witness Evidence and the Equitable Reduction

Overtime pay is among the most frequently claimed items in employment litigation. The burden of proof generally lies with the employee who claims to have worked overtime. Where there are no written records, witness evidence becomes decisive.

The typical dispute

In typical cases, the employee claims to have worked six days a week from morning to evening without receiving overtime pay. The employer argues that the payslips show overtime accruals and that the employee signed them without reservation.

The settled approach

According to the Court of Cassation’s settled practice, where signed payslips show overtime accruals, the employee must prove additional overtime with written evidence. For periods without accruals, proof by witness evidence is possible.

In calculations based on witness evidence, a discretionary reduction is applied because working at the same pace every day is not consistent with the ordinary course of life.

The reduction reflects days not worked, such as illness, leave or excused absence, that cannot be fully captured in the file. The rate is at the court’s discretion and must be reasoned.

Assessment

This approach offers a practical answer to evidentiary difficulty. For employers, however, what matters most is keeping attendance logs, timesheets and payslips accurate and up to date. Where records are properly kept, disputes rarely come down to witness evidence.