Complainant

Respondent

Anonymised Parties

A Supervisor

A Cleaning Company

Representatives

SIPTU

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00036236-001

19/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00036236-002

19/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00036236-003

19/05/2020

The Complainant was employed by the Respondent as a Supervisor from December 2019 when her employment transferred under the Transfer of Undertakings from another employer, Company ABC. The date of the commencement of employment with ABC was in dispute. However, post hearing the parties agreed and confirmed to the WRC that the date of commencement of employment was 16th September 2003. The Complainant was paid €11.11 per hour and worked 15 hours a week.

The Respondent submits as follows:

The Respondent is a contract cleaning/facilities management company that employs over 1500 people throughout Ireland.

The Complainant transferred by way of TUPE transfer from Company ABC on 2nd December 2019, with a continuous employment date from 2nd January 2007 confirmed by Company ABC, as a supervisor at a named site. She was paid and hourly rate of €11.11 and was contracted for 3 hours per day Monday to Friday. She had responsibility for the supervision of 5 other staff, Ms C, Ms D, Ms M, Ms L and Ms K.

On 31st December 2019 the Complainant and the 5 other staff members were due to work their normal shifts. The client informed the Respondent that nobody had attended site that day. When he checked the clock in system, the Area Manager for the site (AM) found that all six staff members had clocked in and out as normal. They had clock in and out using their mobile phones.

In the ensuing investigation and disciplinary hearing process it became clear that the Complainant, as supervisor for the site, had issued an instruction by text or by phone to four out of the five staff members not to come to work on 31st December but to clock in and out as usual. One of the employees, Ms L stated that she had been contacted by the Complainant by phone and told to call one of the other employees (Ms M) as the Complainant did not speak to this employee. This employee’s (Ms L’s) phone records show a call from the Complainant followed by a call to the other employee (Ms M). The fifth employee (Ms K) stated that she had called the Complainant to advise that she would not be attending work on 31st December. The Complainant denied having made contact with any of the employees at both investigation and disciplinary hearings.

The Complainant was called initially to an investigation meeting on 22nd January 2020 followed by a disciplinary hearing on 6th February 2020. During this disciplinary process, the Complainant denied that she had issued the instruction to any of the staff, claiming that she did not know how to use her mobile phone which was new. The Complainant was deemed to be guilty of gross misconduct by telling employees not to come to work but to clock in and out in order that they would get paid, and had also herself not come to work but had clocked in and out as if she had attended work. The Complainant was dismissed without notice on 12th February 2020. This decision was upheld at a subsequent appeal. All other employees were issued with a final written warning.

Respondent’s position

The Complainant was employed as a supervisor. She had overall responsibility for ensuring that the site was attended by all employees to complete their shifts as scheduled thus ensuring the client’s premises were cleaned to a high standard.

On 31st December she advised 4 of the 5 employees not to attend their shift but to clock in and out as if they had attended, and she herself admitted that she had clocked in and out without attending the site. Which would mean they would have been paid for work that had not been carried out. This was fraudulent and under the terms set out in the employee handbook it is considered to be gross misconduct and so the decision was taken to terminate her employment immediately and without notice pay. The other employees admitted during the disciplinary process that they had carried out their supervisor’s instruction, but also admitted that they realised that this was fraudulent and so were issued with final written warnings.

The Respondent believes that the Complainant fully understood that what she instructed the employees to do was fraudulent. As a supervisor she had instructed the employees to carry out a fraudulent act and therefore the dismissal was fair and reasonable.

The Complainant contends that she was unfairly dismissed by the Respondent.

SIPTU on behalf of the Complainant submits as follows:

The Complainant was moved to an office building in 2007 and remained there until her dismissal on 11th February 2020. The Complainant held an excellent record during her 18 years’ service, always performing her duties to the best of her ability, very co-operative and flexible, exempt from any form of disciplinary sanction, her attendance and timekeeping were impeccable. However, the Complainant was dismissed without notice on 11th February 2020.

The Complainant received an invitation to an investigation meeting by letter dated 16th January 2020. The meeting took place on 20th January 2020 and the investigation was conducted by the Area Manager (AM).

The Complainant received an invitation to a disciplinary hearing by letter dated 7th February 2020. The meeting was held on 11th February 2020. The outcome of the disciplinary hearing was issued on 12th February 2020, which resulted in the dismissal of the Complainant.

The matter was appealed to Head of HR and the appeal hearing was held on 25th February 2020 resulted in the dismissal being upheld.

Union’s argument:

The Complainant was employed as a Cleaning Operative, which attracts the rate of €10.80 per hour. She was given the extra responsibility of Supervisor and was paid the rate of €11.11, and extra €0.31 per hour.

The Complainant was a Working Supervisor as she had full cleaning duties to carry out as her main job. All the cleaners worked on different floors and sometimes would not see each other during their shift.

On 30th December 2019, the workers gathered in the canteen and discussed among themselves the number of the client’s employees in the building during the Christmas holiday period. The discussion developed and it was decided by all the workers that they would not go to work the following day, 31st December 2019.  The Complainant insists that she did not tell the workers not to go to work. The Complainant is accused of instructing the other workers not to come to work and to clock in and out as normal.  The Complainant categorically denies this allegation.

The Respondent conducted an investigation into these allegations. SPITU contends that this investigation was not a fair and due process.

·         The Complainant was not informed of this allegation prior to the investigation. Therefore, she was not made aware of the full allegations made against her.

·         The Complainant was not issued with the signed minutes from the other investigation meetings and therefore was not aware of what the others had alleged and was not given the opportunity to respond to these allegations.

·         The other staff members corroborated prior to the investigation process (with the exception of one staff member) and the process allowed them to attend meetings with each other as witnesses.

·         The one staff member stated at her meeting that she was not told by the Complainant not to go to work. This staff member confirmed that she made that decision herself.

·         There was no Investigation Report issued in advance of the disciplinary hearing, therefore the Complainant had to attend the disciplinary hearing and the appeal hearing without being issued with the evidence that was used against her in making the decision to terminate her employment.

·         The Complainant was not afforded the right to natural justice.

·         SIPTU contends that the other staff members collaborated in order to save their own jobs and ensure that someone else got the blame for their own dishonesty.

·         SIPTU also contends that the Respondent accepted this position as it would have been too costly to dismiss all the staff and hire new staff in such short notice. The Respondent also willingly and knowingly allowed the Complainant to be the fall guy for the whole situation.

·         SIPTU submits that the Complainant was deliberately targeted by the Respondent from the onset of the process and never stood a chance to be treated fairly.

·         The Complainant admitted she did not work and clocked in and out on 31st December 2019, as did the other workers. However, the other workers were issued with a lesser sanction and were allowed to continue working in their jobs. The Complainant was treated differently to her colleagues despite committing and admitting the same misconduct.

·         Alternatives were not considered for the Complainant, despite the Respondent’s Disciplinary Policy stating: “In certain circumstances it may be appropriate to consider suspension or demotion as an alternative to dismissal”.

·         The Complainant has 18 years of unblemished record which SIPTU believes was not taken into consideration.

·         It should be noted that the Complainant has since been replaced by a non-working supervisor. This role is dedicated to supervision only.

·         The sanction of dismissal was grossly disproportionate to the circumstances and indicates a predetermined outcome from the outset.

SIPTU cited Frizelle v New Ross Credit Union [1997] IEHC 137 and Tesco Ireland v Laura Gannon UDD2114/2010 in support.

The relevant law

The Unfair Dismissal Act, 1997 stipulates that:Section 6(1)

”Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4)

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: ...

(b) the conduct of the employee,…”

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair and Section 6(7) provides for an Adjudication Officer to have regard to

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

My role is not to conduct a further factual investigation and substitute my own judgment for that of the employer but rather to objectively assess whether the decision to dismiss the employee falls within the range of actions which a reasonable employer would take in the circumstances.

In Bunyan v United Dominions Trust [1982] ILRM 404, the EAT adopted and applied the following principle enunciated by the UK EAT in NC Watling Co Ltd v Richardson [1978] IRLR 225:-

"[T]he fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded."

I must also have regard to the procedures used in arriving at a decision. Guidance is provided in S.I. 146/2000, Code of Practice for disciplinary and grievance processes.

The fact of dismissal in this case is not in dispute between the parties and therefore the Respondent carries the onus of showing that, having regard to all the circumstances there were substantial grounds justifying the dismissal. The Respondent contends that the dismissal was justified on grounds of gross misconduct.

In respect of the procedures employed by the Respondent, I note that the Respondent has a Disciplinary Procedure in place.  The Respondent’s procedure provides that “Before the start of any procedure, you will be told of the nature of the complaint against you and no decision will be made without you having been given the opportunity to state your case in full.”

The Complainant, by letter dated 16th January 2020 was invited to an investigation meeting on 22nd January 2020. The allegations against the Complainant were:

“Having received reports that you have clocked in for a shift where you were not on site for this shift and that it is possible that you have been paid for hours which you have not worked, you are required to attend an investigation meeting.

I should point out that should this allegation prove to be true this would be considered gross misconduct as it would be considered:

·         Falsification of company records or reports – relating to our clock in record

·         A serious breach of integrity or trust

·         Bringing the company’s name in too disrepute [sic]

·         Conduct unbecoming of a supervisor”

Subsequently the Complainant was invited to a disciplinary hearing by letter which outlined the following:

“…you are required to attend a Disciplinary hearing to discuss the below allegations.

·         Clocking in and out for a shift where you are not onsite, with the possibility that you have been paid for hours that you have not worked.”

The outcome letter dated 12th February 2020 again outlined the allegation of “clocking in and out for a shift while you were not on site”. The Respondent’s decision was to dismiss the Complainant. The Complainant appealed the decision. The letter upholding the dismissal signed by the Head of HR and dated 2nd March 2020 clearly states that the Complainant and the operatives failed to attend work on 31st December 2019 but clocked in and out, which the Complainant admitted.  The letter confirms that the operatives had a disciplinary sanction imposed upon them and it was confirmed at the hearing that they were issued with a final written warning. However, the Head of HR states also in his letter that the Respondent had been advised during the disciplinary process that the Complainant instructed the other staff members not to come to work. The Head of HR does not address, however, the statement of one employee who clearly said that she was not instructed by the Complainant to do so. The Head of HR relies on a phone record of one of the employees which he viewed on 27th February 2020, post the appeal hearing and which has never been presented to the Complainant. The Head of HR states that this record supports the assertion that the Complainant “made a decision to instruct the operatives not to come to work and to clock in and out as usual which amount to gross misconduct on the grounds of falsification of company records with a view of being paid for work not carried out. The operatives have had a disciplinary sanction imposed upon them. They were acting on your instruction as their line manager. I am therefore upholding the decision made by HR Generalist [Ms A] to dismiss you…”

Firstly, while the Complainant was asked during the disciplinary process if she had instructed the employees not to come to work, which she denied, the allegation that as a supervisor she gave instruction to the staff members not to attend work was not formally put to her. The only allegation outlined by the Respondent was that of clocking in and out while not attending the site.

Mr Des Ryan BL at para 13.72 of Redmond on Dismissal Law (3rdEd., Bloomsbury Professional, 2017) states:

“Heavy emphasis has been laid in recent case law on the duty on an employer to set out clearly allegations made against an employee from the outset, with the employer not being permitted to augment the allegations as the investigation progresses. This is because an employee is entitled to be informed at the outset of the complaint(s) being made against him or her in order to ensure he or she has a meaningful opportunity to prepare and present his or her defence.”

In Kilsaran Concrete, Kilsaran International Ltd v Vitalie Vet [2016] 27 E.L.R. 237 the Labour Court held:

“(i) It is self-evident that the rationale for the requirement that the person who is subject to a disciplinary investigation should be made fully aware of the complaint(s) against him or her is to ensure that he/she has a meaningful opportunity both to prepare and to present his/her defence to the complaint(s) (Preston v Standard Piping [1999] E.L.R. 233 refers). It is abundantly clear to the Court – and admitted by the respondent's witnesses – that the respondent's disciplinary investigation dealt with allegations that had not been formally put in writing to the complainant either at the outset of the investigation or in the course thereof. The respondent's witnesses also accepted, and the court finds, that those additional allegations were material to the decision taken to summarily dismiss the complainant and the subsequent decision taken at the appeal stage to confirm that sanction.”

It is clear in the instant case that throughout the process the Respondent dealt with allegations that had not been formally put to the Complainant at any stage of the investigation. It appears that the Complainant was not informed at the outset of the investigation of all of the allegations raised against her. This raises a question as to whether or not she was afforded a proper and meaningful opportunity to present her defence. The Respondent seemed to form the opinion that the Complainant instructed the other members of staff not to attend work. I find that those additional allegations were of significance in the decision-making process which led to the dismissal of the Complainant and even more so in the subsequent decision to uphold the dismissal at the appeal stage.

I note the Respondent’s reliance on the phone record viewed by the Head of HR on 27th February 2020. I find that evidential value of the phone record is somewhat questionable. The record appears to be a screen shot showing a phone call from the Complainant on 31st December 2019. It does not show the time of the phone call. In fact, is it not clear who was the phone call made to. In any event, any matters which are discovered subsequent to dismissal, or like in the instant case post appeal hearing, were not known to the Respondent at the time the decision to dismiss was made, therefore they could not be taken into account in the decision-making process. Consequently, they cannot have relevance in determining the reason for dismissal.

I note that throughout the process the Respondent interviewed five members of staff who did not attend work on 31st December 2019. It is of some concern that the Respondent allowed two employees to be interviewed together i.e. when Ms L was interviewed Ms M accompanied her and vice versa. I have to agree with the Complainant that such approach clearly provided an opportunity for collaboration. Moreover, it appears that the Respondent relied on the statements of some employees only. As noted above, the Respondent heavily relied on the allegations by staff members who asserted that the Complainant instructed them not to attend to the site but seemed not to consider the statement of the employee who said that she did not.

S.I. 146/2000 provides that “the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses”. I note that the Complainant at no stage was provided with any record of the statements of employees who were ultimately witnesses in her disciplinary process. Neither was she given an opportunity to question them. I also note that there was no report of the investigation issued.

In the Kilsaran Concrete case quoted above, the Court states as follows:

“(iii) One of the key principles regulating the reasonableness of a dismissal is compliance with the principle of proportionality: McCurdy v Adelphi [1992] E.L.R. 14. The principle is a component of the general s.6(7)(a) principle of reasonableness. It is also a component of S.I. No. 146 of 2000, imported by s.6(7)(b) of the Act.

Summary dismissal is the nuclear weapon in the employer's arsenal of disciplinary sanctions. Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability (under that Act) for statutory minimum notice where the dismissal is for certain forms of very serious misconduct. Commenting on s.8, the Employment Appeals Tribunal in Lennon v Bredin Employment Appeals Tribunal Determination M160/1978 stated:

“We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category.”

At the relevant time the Complainant had no warnings on her file. She claimed to have had 18 years of unblemished record with the Respondent and its predecessor. Subsequently, it was confirmed by both parties that the Complainant started her employment on 16th September 2003 and therefore had over 16 years of service. While the Respondent asserted at the hearing that the statement in respect of the Complainant’s record is made without any evidence, it did not produce any evidence to show otherwise.

No evidence was presented on behalf of the Respondent that the Complainant’s service was taken into consideration. Neither, it appears, any consideration was given to a sanction other than dismissal at either the disciplinary or appeal stages. 

It is imperative that employers act consistently in their treatment of anyone who is found guilty of unacceptable conduct. The Employment Appeals Tribunal in Kelly v Power Supermarkets Ltd. [1990] ELR 141 held that dismissal is unfair if a co-employee in a similar situation to the complainant is not dismissed. In the instant case, the allegation against the Complainant was exactly the same as against five other staff members. She was dismissed for clocking in and out for a shift when she was not on site and not for giving instruction to the staff not to attend work as claimed by the Respondent in its submission to the WRC. And it follows that she was dismissed for an offence for which the other five staff members were given a final written warning.

Having considered the evidence available to me I find that the procedure employed by the Respondent was flawed. Moreover, I do not accept that summary dismissal was a reasonable response open to a reasonable employer in the circumstances of this case. However, I do find that the Complainant contributed to the situation she found herself in.

The Complainant gave evidence that she made some efforts to secure new employment but was unsuccessful and she indicated that, taking the current circumstances with regard to the global pandemic it is unlikely she would secure new job in the nearest future. The Complainant provided very limited evidence of her efforts to secure new employment. She indicated that, in the event of her claim being determined to be successful her preferred remedy would be re-engagement or re-instatement. The Respondent raised no objection to the Complainant’s request.

Having carefully considered the circumstance of the case, I find that the Complainant should be re-engaged as a supervisor, with effect from the date of this Decision. The period from the date of her purported dismissal on 11th February 2020 to the date of her re-engagement is to be regarded as a period of unpaid suspension.

My decision takes account of the Complainant's contribution to her own dismissal.

SIPTU on behalf of the Complainant submits that the Complainant had 18 years’ service with the Respondent and therefore the minimum notice period that applies to the Complainant is 8 weeks. This was not afforded to the Complainant as the dismissal was issued with immediate effect.

The Respondent submits that the Complainant was dismissed with immediate effect for gross misconduct.

In light of my decision above that the Complainant is to be re-engaged as of the date of this decision the issue of notice does not arise.

In light of my decision in CA- 00036236-001 I declare this complaint not well founded.

SIPTU on behalf of the Complainant submits that the Complainant did not receive her outstanding annual leave entitlements. SIPTU argues that the Organisation of Working Time Act provides for an employee to be paid annual leave and public holidays entitlements, and/or compensation on cessation of employment.

At the hearing, SIPTU elaborated on the very brief description of the Complainant’s claim and clarified that the Complainant believes that she is owed 5 days of annual leave for 2019.

The Respondent submits that there was an error in processing the Complainant’s pay for holidays accrued but not taken. This has been corrected and the 5 hours owed (€55.55 gross) were paid into the Complainant’s account on 31st July 2020. Payslip showing the payment was exhibited.

At the hearing the Respondent was not fully prepared to defend the claim in respect of annual leave entitlements for 2019 as these related to a period prior to the transfer of undertakings and the details of the claim were not notified in advance of the hearing. However, the Respondent argued that Company ABC furnished the Respondent with a list of outstanding annual leave entitlements and these would have been given to all employees in question during the first months of 2020. The Respondent argued that should the Complainant have had any outstanding entitlements, like all other employees she would have been given them.

Post hearing the Respondent provided a copy of a “Holiday balance sheet” which it claimed was produced by Company ABC at the time of the transfer of undertakings. The record showed that the Complainant had no annual leave entitlements carried over.

Section 23 of the Organisation of Working Time Act, 1997 provides that

“Compensation on cesser of employment

(1)

(a) Where—

(i) an employee ceases to be employed, and

(ii) the whole or any portion of the annual leave in respect of the relevant period remains to be granted to the employee,

the employee, shall as compensation for the loss of that annual leave, be paid by his or her employer an amount equal to the pay, calculated at the normal weekly rate or, as the case may be, at a rate proportionate to the normal weekly rate, that he or he would have received had he or she been granted that annual leave. “

In light of my decision to re-engage the Complainant the matter of compensation on cessation of employment does not arise. However, the claim that the Complainant is owed five days of annual leave requires to be addressed.

In her initial Complaint Form to the WRC the Complainant stated the following: “I did not receive my annual leave payment entitlement on termination of my employment.” She did not elaborate as to the details of the alleged non-payment of her entitlements.

The Respondent, in its submission received by the WRC on 23rd July 2020, which was copied to the Complainant’s representative on 6th August 2020 clearly addresses the matter of an error in processing of the Complainant’s pay for holidays accrued but not taken. The Respondent confirmed that the outstanding 5 hours leave at €11.11 were paid to the Complainant on 31st July 2020.  

In the written submission received by the WRC on 24th September 2020, SIPTU claims that “[The Complainant] did not receive her outstanding annual leave entitlements on termination of employment”. Again, no particulars of the claim were outlined in the submission and SIPTU did not address the Respondent’s assertion that the matter was resolved on 31st July 2020.

At the adjudication hearing the Complainant was requested to provide particulars of her claim. 

The Complainant made an assertion that she is owed five days of annual leave for 2019, which should have carried over at the time of the transfer of undertakings. The Complainant asserted that she would have taken three weeks of leave in 2019.

Section 25 of the Act stipulates as follows:

25. Records

(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act and, where applicable, the Activities of Doctors in Training Regulations are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

…

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act or the Activities of Doctors in Training Regulations in relation to an employee, the onus of proving, in proceedings before an adjudication officer or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.

There were no records exhibited at the hearing or indeed in the correspondence prior and post hearing to show the Respondent’s compliance with the Act, as required by Section 25.

Consequently, the Respondent bears the legal burden of proving compliance with the Act in respect of the matter at issue in this claim.

In Rezmerita Limited v Katarzyna Uciechowska DWT1018 the Labour Court held:

“Where statutory records are not maintained the employer is faced with the burden of rebutting what is in effect a presumption of non-compliance. It is the experience of the Court that, in practice, this is often a heavy burden which cannot be easily discharged where there is contradictory oral testimony and an absence of reliable corroborative evidence.

In this case there is a marked conflict in the evidence tendered on behalf of the Respondent as against that given by the Claimants in relation to all material issues arising in this case. There was also an absence of any probative independent corroboration on either side. The standard of proof necessary to rebut the presumption of non-compliance is the preponderance of probabilities, usually referred to as the balance of probabilities. In Miller v Ministry of Pensions [1947] 2.All E.R, 372 Denning J. (as he then was) explained, in relation to this standard of proof, that: -

“[i]f the evidence is such that the Tribunal can ‘say we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not”

In Circus Gerbola Limited v El Mostafa Chtabbou MWD1211 the Labour Court outlined the approach in respect of the burden of proof as follows:

“In Jakonis Antanas v Nolan Transportthe Labour Court held as follows in relation to the application of Section 25(4) of the Organisation of Working Time Act 1997, which is similarly worded to Section 22(3) of the Act: -

The burden on a respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from Section 27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.

This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland [1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”

The respondent should then be called upon to put the records required by Section 25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden he or she cannot succeed.

Where records in the prescribed form are not produced, and the claimant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the claimant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge that burden the claimant will succeed.

What that means in practical terms is that the Respondent must satisfy the Court that it is more probable than not that the Act was complied with in respect to the matters complained of by the Claimant. If the Respondent does not do so or if the probabilities are equal the Claimant will succeed. That is a reversal of the normal rule of evidence which requires that he who asserts must prove.

The reason for this reversal is obvious. The Act obligates an employer to maintain records which he or she must produce to an inspector appointed by the Minister if called upon to do so. These records may thus provide evidence of compliance or non-compliance with the Act. If there are no records proving non-compliance, on the normal evidential rules, would be onerous and in many cases impossible. Hence, in the absence of a reversal of the probative burden an employer who fails to maintain records in accordance with Section 25(1) of the Act could be placed in a superior position in defending a claim under the Act than an employer who does maintain records which, on examination, may disclose evidence to support the claim. Consequently the Oireachtas has provided for a rebuttable presumption of non-compliance in situations in which records in the prescribed form are not maintained.”

In the present case, the Complainant provided no evidence whatsoever in support of her assertion that she is owed 5 days of annual leave. She suggested that she took one week of leave in the spring of 2019, two in the summer and therefore, she felt that she should have 1 week left. She did not provide anything to support her belief. While the Complainant accepted that records such as her payslips would show payments for any annual leave taken, no such evidence was provided during or after the hearing.

I note that the transfer of undertakings took place on 2nd December 2019. While the Respondent did not proffer records required by Section 25 it did submit a spreadsheet which the Respondent asserted was furnished to the Respondent by Company ABC at the time of the transfer. SIPTU contended that while the document appears to be annual leave taken or outstanding for every employee, the table is not on headed paper and therefore SIPTU is not aware of who created the said table or on what basis the hours shown are calculated on, or in what year. The Respondent subsequently confirmed in writing that the holiday balance sheet is an extract from the complete TUPE details received from Company ABC in November 2019. I note that the Respondent showed willingness to address promptly the Complainant’s outstanding annual leave entitlements and, following receipt of the Complainant’s claim from the WRC in mid July 2020, promptly reviewed her annual leave and processed the payment of outstanding 5 hours.

Having carefully considered the evidence available to me I come to the conclusion, on the balance of probabilities, that the evidence tendered by the Respondent, while limited does show compliance with the Act in respect of the matter complained of. Consequently, I find that the complaint is not well founded.

I declare this complaint not well founded.

Unfair dismissal-flawed disciplinary process-annual leave-notice