ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00029223
Parties:
| Complainant | Respondent |
Parties | Sandra Blakeney | Verve Marketing Limited |
| Complainant | Respondent |
Anonymised Parties | A senior account manager | An event management company |
Representatives | Richard Grogan & Associates solicitors | Sherwin O'Riordan solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00038618-001 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00038618-002 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00038618-003 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00038618-004 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-005 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-006 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-007 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-008 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-009 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-010 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-011 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-012 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-013 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-014 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-015 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-016 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-017 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-018 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-019 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-020 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-021 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-022 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-023 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-024 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-025 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-026 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-027 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-028 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-029 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-030 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-031 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-032 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-033 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-034 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-035 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-036 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-037 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-038 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-039 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-040 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-041 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-042 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-043 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-044 | 08/07/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00038618-045 | 08/07/2020 |
Date of Adjudication Hearing: 08/04/2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 8th July 2020, the complainant referred 45 complaints to the Workplace Relations Commission. They were scheduled for adjudication on the 8th April 2021. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.
The complainant attended the adjudication and was represented by Richard Grogan, solicitor. The respondent was represented by David O’Riordan, Sherwin O’Riordan solicitors. Three witnesses gave evidence on the respondent’s behalf and were cross-examined. They are referred to as the Managing Director, the Financial Controller and the HR manager.
This case related to one complaint pursuant to each of the Terms of Employment (Information) Act, the Payment of Wages Act, the Unfair Dismissals Act and the Redundancy Payments Act. The other complaints were pursuant to the Organisation of Working Time Act. During the hearing, the complainant’s solicitor indicated that the complainant was withdrawing the claims pursuant to the Unfair Dismissals Act and the Redundancy Payments Act. (She was placed on lay-off during 2020 because of the Covid-19 pandemic and remains on lay-off.) The complainant’s solicitor indicated that he was also withdrawing the section 15 OWTA claims.
The complainant and her solicitor withdrew from the adjudication hearing at the point in time the complainant was due to be cross-examined by the respondent’s solicitor. I have fully addressed this issue in the findings section of this decision.
Prior to this, the respondent indicated that it wished to submit documentation after that day’s hearing. The documents the respondent wished to submit were pay slips, daily billable time sheets completed by the complainant and the consent form for the pay reduction. They were submitted to the Workplace Relations Commission on the 13th April 2021 and circulated to the complainant.
Arising from the circumstances of the ending of the adjudication hearing, the complainant’s solicitor made submissions regarding the cross-examination of the complainant. His submission was that the complainant should not be cross-examined as she had not given evidence and arising from the burden of proof in working time cases where the respondent did not maintain the records required by section 25 of the Organisation of Working Time Act. The submissions were circulated to the respondent in the usual way. The respondent’s solicitor objected to the submissions being considered as part of this adjudication, saying that the complainant had abandoned the case.
I have taken full account of the submissions made by the complainant following the hearing. They address the important issue of cross-examination in the context of a quasi-judicial process and following the Supreme Court judgments in Zalewski v Workplace Relations Commission [2021] IESC 24. It is important that this issue is adjudicated upon, taking account of the parties’ full submissions on this legal point. Moreover, the respondent was facilitated in submitting post-hearing evidence, so the same facility was granted to the complainant in respect of these legal submissions.
In accordance with section 41 of the Workplace Relations Act, 2015, section 39 of the Redundancy Payments Acts 1967 - 2014 and section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant worked for the respondent from the 13th June 2017 and it was accepted at the adjudication, she remains in its employment, although on lay-off because of the Covid-19 pandemic. The complainant worked as a Senior Client Account Manager and the respondent is an event management and marketing company. The complainant was paid €55,000 per year. |
Summary of Complainant’s Case:
In submissions, the complainant outlined that section 25 of the Organisation of Working Time Act placed the obligation on the respondent employer to maintain records. It was submitted that the respondent did not maintain such working time records, so, pursuant to section 25(4), the burden of proof to show compliance fell on the respondent. It was submitted that the respondent’s records amounted to only two pages. The complainant relied on the Antanas v Nolan Transport (DWT1117) authority of the Labour Court. The complainant submitted that Bratty v Attorney General for Northern Ireland [1963] AC 368 had been surpassed by the jurisprudence of the Court of Justice of the European Union. The complainant relied on the CJEU judgment in Max-Planck (Max-Planck-gestelleschaft zur Forderung der Wissenschaften eV v Shimizu C-684/16), which had direct effect. This authority placed the obligation on an employer of ‘all due diligence’ not just with regard to annual leave but to all issues arising from the Working Time Directive (Directive 2003/88), as the Charter of Fundamental Rights had effect. It was submitted that ‘all due diligence’ covers all aspects of the Act and all forms of rest periods. The complainant also referred to Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank C-55/18 (the ‘CCOO’ case) and the requirement for an objective system to measure working time. The complainant’s solicitor outlined that the complainant would not be giving evidence in respect of the contraventions of sections 12 and 17 of the Organisation of Working Time Act. It was submitted that the respondent documentation did not notify the complainant of her working hours or rest breaks. The complainant referred to the obligation in section 3 of the Terms of Employment (Information) Act to inform the employee of start and finish times, as well as the obligation to state rest periods. The complainant submitted that as there was no provision for lay-off in the contract of employment, the respondent was obliged to pay the complainant during lay-off. Here, the respondent paid the complainant the Temporary Wage Subsidy Scheme, topped up by a tax rebate, but this was not permitted under the contract of employment. The complainant further submitted that she was not a senior individual per the Organisation of Working Time Act and could not choose her hours. She submitted that the records were incomplete and that there was no exemption for event management. The complainant’s solicitor withdrew the Unfair Dismissal and the Redundancy Payments complaints as well as the section 15 OWTA claims. The complainant outlined that there was no evidence of compliance in respect of daily rest breaks. The complainant was not informed of the end time of her working day. Von Colson applied to assessing redress. The complainant submitted that the respondent had ‘diddly-squat’ working time records and the burden of proof rested on them. The complainant’s solicitor outlined that the complainant would not be giving evidence. The complainant’s solicitor outlined that the respondent must have evidence of compliance on specific dates before being able to cross-examine the complainant. He outlined that because of the burden of proof in section 25 of the Organisation of Working Time Act, the complainant could not be cross-examined other than if there was evidence of compliance on specific dates. The complainant relied on her written submissions in respect of the payment of wages and terms of employment (information) claims. |
Summary of Respondent’s Case:
The respondent’s solicitor submitted that the nature of the complainant’s role and her seniority meant that she could take breaks whenever she wanted to. This was a creative event management role, with no clocking in or out and where staff would work some weekends. It submitted that the respondent’s business was significantly impacted by the pandemic and there were two rounds of lay-offs. The complainant was laid off and later took up other employment. Evidence and cross-examination of the Managing Director The Managing Director gave evidence that he was the founder and the Managing Director of the respondent, a live events business. He outlined that staff record their own working time on a billable basis and this was signed off by the line manager. Staff were trusted to take breaks. Where staff worked in the evenings and over the weekend, they were entitled to time off in lieu. The respondent was anxious that people take the leave owed to them and also granted an additional week of paid leave over Christmas. The Managing Director outlined that the respondent shut on the 16th March 2020 as a result of the pandemic. He outlined that the respondent had lost 95% of its business by April 2020. They had no visibility of when business would resume. The respondent had to lay off staff and to avail of Government supports. The respondent developed an online event management business to stay afloat for the rest of the year. In cross-examination, the Managing Director was asked whether the respondent had an exemption to the requirement to record working time; he replied that he was not aware of any exemption. It was put to the Managing Director that the respondent was required to record daily rest breaks and working hours; he replied that the respondent did not record breaks as people took their breaks whenever they wanted to. He accepted that the contract of employment did not set out an employee’s rights pursuant to sections 11, 12 and 13 of the Organisation of Working Time Act. It was put to the Managing Director that staff could not know what breaks they could take if they did not know what they were; he replied that the respondent was a relaxed workplace and people took their own breaks. He said that it would infringe on staff to tell them when to take breaks. He accepted that he could not show that the complainant received her daily rest breaks. He accepted that the contract of employment did not state a finish time for the working day and that staff were not notified on a weekly basis of their working hours. The Managing Director said that the daily time sheets recorded hours of work, but not when breaks were taken. He said that holiday pay was paid as normal as part of the normal pay roll. It was not paid in advance of a period of annual leave. The Managing Director said that staff had been placed on temporary lay-off because of the pandemic and this was an unforeseen event. He accepted that the contract of employment did not include a provision for lay-off. The Managing Director said that the complainant and other staff had consented to the pay reduction. Evidence and cross-examination of the HR Manager The HR Manager outlined that he worked in this role for the respondent from October 2018 to January 2021. He outlined that the respondent had to place people on lay-off because of the pandemic. They put together FAQs before contacting staff on Zoom. They were able to meet staff in person for the second round of lay-offs. There was about thirty pages of documentation regarding the lay-offs. The respondent addressed pay cuts at a town hall meeting. The respondent obtained the consent from all employees to the pay cut via a named piece of HR software and staff indicated their consent via an electronic signature. The HR Manager outlined that to his knowledge, all employees had given their consent. In cross-examination, the HR Manager said that he advocated that an employer complies with statutory requirements where possible. He had carried out the inductions of new staff and explained to staff about taking one-hour breaks and the facilities for coffee breaks. He outlined that while there was no contractual right to place staff on lay-off, the respondent acted in the same way as other firms during the pandemic. He outlined that staff had given their consent electronically to the pay reduction. Evidence and cross-examination of the Finance Director The Finance Director gave evidence that all staff had accepted the salary reduction. They had reduced all staff to 75% of their net take-home pay, taking their normal net take home pay. The complainant received all the holiday pay due. The Finance Director outlined that staff took breaks when they wanted, and no one stood over them. He said that he was pretty sure that the complainant took all her time off, including an extended vacation at the beginning of 2020. In cross-examination, the Finance Director said that staff are paid on the third last banking day of the month and could have asked to be paid in advance of any period of annual leave. He accepted that there were no provisions in the contract of employment for lay-off. He outlined that the complainant was paid for public holidays arising in the period of lay-off and this was paid at the 75% rate. He outlined that the respondent had paid staff the Temporary Wage Subsidy Scheme and whatever was necessary to bring pay up to 75% of normal net pay. He outlined that there had been nine iterations of the TWSS. He said that there were no formal records of breaks but that the complainant took her breaks. |
Findings and Conclusions:
These complaints were heard at adjudication on the 8th April 2021. Unfortunately, the complainant and her solicitor left the remote hearing prior to the completion of the hearing. This arose at an impasse reached during the hearing. The order of the hearing was as follows. The complainant’s solicitor gave an opening outline of the case. The solicitor for the respondent replied. Three respondent witnesses gave evidence, and each was cross-examined in turn. The complainant’s solicitor indicated that the complainant would not be giving evidence. The respondent’s solicitor asked that he be able to cross-examine the complainant, a request I acceded to. The complainant’s solicitor gave submissions as to why the complainant should not be cross-examined. I gave my reasons for allowing cross-examination to proceed. It is at this point that the complainant and her solicitor ended their participation at the hearing. Prior to leaving the hearing, the complainant’s solicitor made the following submissions as to why the complainant should not be cross-examined. The complainant outlined that the bulk of the complaints were working time claims in respect of rest breaks. It was submitted that the onus of proof was on the respondent per section 25(4) of the Organisation of Working Time Act. It was submitted that as the respondent did not have working time records, the complainant was not required to go into evidence. It was submitted that if the complainant did not go into evidence, she could not be cross-examined. It was submitted that it was not permissible to require the complainant be cross-examined in these circumstances and stated that the complainant would answer any questions I had. It was submitted that the respondent must have evidence of compliance on a particular time period in order to be able to cross-examine the complainant about this time period. The complainant relied on the written submissions in respect of the other complaints. I indicated that I was obliged to allow the respondent cross-examine the complainant and that this was a procedural right. I suggested that the right to cross-examine was not determined by a burden or onus of proof, or by the perceived strength of a case. Here, while most of the complaints were pursuant to the Organisation of Working Time Act, there were also complaints pursuant to the Terms of Employment (Information) Act and the Payment of Wages Act. I stated that even if the only claims had been working time claims subject to the onus of proof on the employer in section 25(4), cross-examination would still have been a procedural right of the respondent. I also stated that cross-examination had to be relevant and not oppressive. I pointed out that the complainant had cross-examined three respondent witnesses and the respondent should be afforded the same opportunity. I outlined that the respondent had this right as part of fair procedures, irrespective of whether or not the complainant gave direct evidence. The duty of an adjudication officer Section 41(5) of the Workplace Relations Act sets out the following obligations on an adjudication officer in respect of a hearing: ‘An adjudication officer to whom a complaint or dispute is referred under this section shall— (i) inquire into the complaint or dispute, (ii) give the parties to the complaint or dispute an opportunity to— (I) be heard by the adjudication officer, and (II) present to the adjudication officer any evidence relevant to the complaint or dispute, (iii) make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and (iv) give the parties to the complaint or dispute a copy of that decision in writing.’
Section 41(5) of the Workplace Relations Act sets out the duty to inquire into the complaint, but also the duty to allow the parties to be heard and, separately, to present any evidence. Section 41(5) also requires the adjudication officer to decide the complaint and to give the parties a copy of that decision. While cross-examination is not expressly referred to in section 41(5), the ‘opportunity to be heard’ encompasses the right to cross-examine. Section 41 of the Workplace Relations Act added another dimension to the role of the decision-maker in deciding working time, terms of employment and payment of wages claims. Section 41 added the ‘duty to inquire into the complaint’. Section 27 of the Organisation of Working Time Act originally provided that the decision-maker ‘shall give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint.’ Section 7 of the Terms of Employment (Information) Act originally provided that the rights commissioner shall ‘give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint’. Similarly, section 6 of the Payment of Wages Act originally provided that the rights commissioner ‘shall give the parties an opportunity to be heard by him and to present to him any evidence relevant to the complaint’. Section 41 adds the requirement ‘to inquire into the complaint’ to the hearing of working time, terms of employment and payment of wages complaints. Zalewski v Workplace Relations Commission This hearing took place the day following the judgments of the Supreme Court in Zalewski v Workplace Relations Commission. The absence of an explicit right to cross-examine was raised in the proceedings as a ground of unconstitutionality. At paragraph 145, Mr Justice O’Donnell held: ‘Section 41(5) requires the adjudication officer to permit the parties “to be heard” and “to present evidence”. Given this enumeration of procedures, the absence of a reference to cross-examination might appear deliberate and directed towards discouraging cross-examination. The Act contemplates “evidence” being given by “witnesses” having the same privileges and immunities as witnesses in the High Court. As long ago as Re Haughey, these features of court proceedings, and, in particular, the ability to cross-examine the opposing party, were regarded as fundamental to fair procedures, and the right of cross-examination (which was excluded by the procedures adopted by the Committee of Public Accounts) was one of the rights without which no party:- “could hope to make any adequate defence of his good name. To deny such rights is, in an ancestral adage, a classic case of clocha ceangailte agus madraí scaoilte. Article 40, s. 3, of the Constitution is a guarantee to the citizen of basic fairness of procedures. The Constitution guarantees such fairness, and it is the duty of the Court to underline that the words of Article 40, s. 3, are not political shibboleths but provide a positive protection for the citizen and his good name.”’ At paragraph 146, Mr Justice O’Donnell concluded ‘Crossexamination and any other procedure should be allowed because they contribute to a fair hearing, and not merely because refusal may lead to challenge. It is, however, the case that it is to be presumed that an Act will be operated consistently with the Constitution, and any procedures carried out under it will comply with constitutional requirements. I note that the W.R.C. has produced a Guidance Note for a WRC Adjudication Hearing which, at para. 6.4, expressly refers to the right to question and cross-examine witnesses. While the guidelines have no statutory force, they are an indication that the W.R.C. does not seek to preclude cross-examination where it is necessary. If cross-examination is wrongly refused, then a remedy is available. I cannot conclude that the absence of an express reference to the availability of cross-examination in this case renders the Act unconstitutional.’ Mr Justice O’Donnell referred to a ‘Guidance Note for a WRC Adjudication Hearing’ which states, at paragraph 6.4 ‘The other party, or their representative, will be given the opportunity to question the parties and other witnesses regarding the evidence they have given.’ It is clear from the Supreme Court judgments in Zalewski that cross-examination is a fundamental part of fair procedures and should not be wrongly refused. It is part and parcel of the procedures administered at WRC adjudications. Purpose of cross-examination The leading text on civil procedure in the superior courts Delaney and McGrath ‘Civil Procedure in the Superior Courts’ Fourth Edition, addresses cross-examination as follows: ‘21.32 Cross-examination of a witness is carried out by the other parties in the proceedings and has two main objectives: (i) to elicit evidence from the witness in relation to the facts in issue which is favourable to the cross-examining party; and (ii) to cast doubt upon the veracity, accuracy, or reliability of the evidence given by the witness. With regard to the first objective, a cross-examining party is entitled to question a witness on any fact in issue or matter relevant to a fact in issue and is not restricted to the evidence given by the witness during examination-in-chief. As for the second objective, there are a number of methods which the cross-examining party may seek to undermine the credibility of a witness and/or veracity, accuracy or reliability of the evidence given by him. The cross-examining party can question the witness on any errors, contradictions or inconsistencies in the evidence given by the witness and any previous inconsistent statements made by him. The party may also question the witness as to his powers of perception, memory and recall and any relevant physical or mental disabilities that could affect these. Finally, the cross-examining party may attack the credit of the witness by questioning him in relation to previous convictions, bias, partiality or improper motive on his part, his bad character or general reputation for untruthfulness.’ As set out in the above extract, cross-examination has two purposes: to elicit facts and to undermine credibility. In respect of eliciting facts, cross-examination is not restricted to any evidence given by the witness. The cross-examining party can question the witness on any relevant fact, even where this has not been mentioned by the witness. In Maguire v Ardagh [2002] IESC 21 Mr Justice Hardiman held: ‘Where a person is accused on the basis of false statements of fact, or denied his civil or constitutional rights on the same basis, cross-examination of the perpetrators of these falsehoods is the great weapon available to him for his own vindication. Falsehoods may arise through deliberate calculated perjury (as in the case of Parnell) through misapprehension, through incomplete knowledge, through bias or prejudice, through failure of memory or delusion. In some cases a witness may not be aware that his evidence is false. A witness may be telling the literal truth but refrain, or be compelled to refrain, from giving a context which puts it in a completely different light. And a witness called to prove a fact favourable to one side may have a great deal of information which he is not invited to give in evidence, favourable to the other party.’ In Maguire v Ardagh, Mr Justice Hardiman outlined that cross-examination allowed evidence to be challenged because it was untrue or inaccurate. It also allowed for information favourable to the cross-examining party to be drawn from the witness. Cross-examination in its broader context As noted, cross-examination arises as part of fair procedures, i.e., referring to Re Haughey, to ensure that stones can be loosened, or dogs harnessed (the adage is ‘clocha ceangailte agus madraí scaoilte’). Addressing difficulties in communication between different legal systems, the Supreme Court in MM v Minister for Justice and Equality (14th February 2018) described the administration of justice in Ireland in the following terms: ‘In the common law world, and in particular in the field of administrative law, it is axiomatic that before a decision is made adverse to a person, they must be given the opportunity of making submissions in relation to it. A right to a hearing normally comprehends therefore an oral hearing. In Irish law, such a hearing invariably means that court like procedures in which evidence is given and the parties are permitted to challenge and cross-examine the witnesses. At the risk of oversimplification it may also be said that such an oral hearing must be held where it is necessary to accord fair procedures to an individual. That will arise most often where the decision may be dependent on the resolution of contested allegations of fact. See for example the decision in Re Haughey [1971] I.R. 217 and its extensive progeny such as Gallagher v Revenue Commissioners (No.2) [1995] 1 I.R.55. That in turn will often be the case where the credibility of a witness is asserted or challenged, as the case may be.’ In DS v Minister for Health and Children and the Hepatitis C Compensation Tribunal [2005] IEHC 58, Mr Justice O’Neill ruled that the respondents retained the right to cross-examine in a High Court appeal as this was not expressly excluded by the relevant statute. This was in the context of the Tribunal being prevented by statute from allowing the cross-examination of claimants and a great many appeals being heard by the High Court without cross-examination taking place. Nevertheless, it was held that the respondents could cross-examine applicants in High Court appeals as this was not expressly excluded by the statute. Neither the Workplace Relations Act, the Unfair Dismissals Act nor the Redundancy Payments Act exclude cross-examination. It is clear from the above that an oral hearing and cross-examination are part of the administration of justice. Cross-examination is part of fair procedures and is available to a party, unless expressly excluded. Organisation of Working Time Act – scope of decision When delegated a complaint pursuant to the Organisation of Working Time Act, an adjudication officer will ultimately have to decide whether there was contravention of a relevant provision of the Act. There must, therefore, be an allegation of a contravention, i.e. a particularised claim of when a relevant provision was contravened. Section 27(3) provides: ‘A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.’ ‘Relevant provision’ includes sections 11 (daily rest), 12 (rest at work), 13 (weekly rest), 15 (weekly hours) and 17 (notification of working time). As set out in section 27(3), the adjudication officer must decide whether the complaint of a contravention is well-founded or not. If it is well-founded, the adjudication officer may award ‘just and equitable’ compensation of up to two year’s remuneration. There is no monetary limit on financial jurisdiction, so a well-paid employee could be awarded an amount in excess of, say, the maximum jurisdiction of the Circuit Court. If the contravention relates to a Directive right, compensation must be effective, proportionate and have deterrent effect. As well as an award of compensation, the adjudication officer may require that the employer comply with a relevant provision, i.e. a forward-looking and perhaps onerous requirement. Organisation of Working Time Act – burden of proof Section 25 imposes an obligation on employers to maintain records of working time and also sets out the burden of proof. In full, section 25 provides: ‘25.— (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. (2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with. (3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence. (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 a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.’ S.I. 473/2001 provides prescribed forms for the recording of working time, where no electronic means are used. Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank C-55/18 It is difficult to over-state the significance of the judgment of the Grand Chamber of the Court of Justice of the European Union in the CCOO case. The Court invoked the Working Time Directive, the Directive on health and safety in the workplace and the Charter of Fundamental Rights. Here, the Court held that a national law that did not require the recording of working time was precluded, i.e. working time must be recorded. This was always an obligation in Irish law, but CCOO is significant as it addresses the difficulties faced by an employee in raising a contravention of the legislation in the absence of records as well as the burden of proof. Directive 2003/88 did not provide for the general obligation to record working time and nor did it set out a burden of proof in proceedings. In CCOO, the Court referred to the relative weakness of the employee and the insufficiency of sources of evidence at the disposal of the employee. While the working time directives required working time records in certain spheres (hauliers and at sea) or where a member state had availed of a derogation, CCOO went beyond this. The CJEU held that the employer was required to record working time as a means of ensuring compliance with the Directive. The Court also addressed the burden of proof: ‘53. It is true, in the present case, that it is clear from the case file before the Court that, as Deutsche Bank and the Spanish Government contend, where there is no system enabling working time to be measured, a worker may, under Spanish procedural rules, rely on other sources of evidence, such as, inter alia, witness statements, the production of emails or the consultation of mobile telephones or computers, in order to provide indications of a breach of those rights and thus bring about a reversal of the burden of proof. 54. However, unlike a system that measures time worked each day, such sources of evidence do not enable the number of hours the worker worked each day and each week to be objectively and reliably established. 55. In particular, it must be emphasised that, taking into account the worker’s position of weakness in the employment relationship, witness evidence cannot be regarded, in itself, as an effective source of evidence capable of guaranteeing actual compliance with the rights at issue, since workers are liable to prove reluctant to give evidence against their employer owing to a fear of measures being taken by the latter which might affect the employment relationship to their detriment. 56. By contrast, a system enabling the time worked by workers each day to be measured offers those workers a particularly effective means of easily accessing objective and reliable data as regards the duration of time actually worked by them and is thus capable of facilitating both the proof by those workers of a breach of the rights conferred on them by Articles 3 and 5 and 6(b) of Directive 2003/88, which give specific form to the fundamental right enshrined in Article 31(2) of the Charter, and also the verification by the competent authorities and national courts of the actual observance of those rights.’ The approach of the CJEU in CCOO was to ensure the effectiveness of the working time rights set out in Articles 3, 5 and 6(b) of the Directive in the light of the Charter and these being health and safety provisions. Furthermore, the keeping by the employer of ‘objective, reliable and accessible’ working time records facilitates the employee in knowing whether there has been a contravention and to challenge any non-compliance. It also assists national bodies, such as the Workplace Relations Commission, in carrying out their statutory functions. The Court was clear that the absence of records impeded the employee in asserting these rights and the statutory bodies in fulfilling their functions. The Court was also clear that other sources of evidence were not equivalent, nor as effective as records. This was because an employee’s evidence (e.g. oral testimony, emails etc) could not equate to the reliability of records, but also because of the relative weakness of the employee in the employment relationship. The Court also referred to the difficulties an employee encountered in reversing a burden of proof in the absence of records. In CCOO, the Court of Justice held that ‘The requirement to interpret national law in a manner that is consistent with EU law includes the obligation for national courts to change their established case-law, where necessary, if it is based on an interpretation of national law that is incompatible with the objectives of a directive.’ [paragraph 70] The judgment in CCOO has been applied by national courts in Member States in deciding working time claims, in particular the burden of proof (see the Jones Day White Paper ‘European Court of Justice Ruling on Daily Registration of Working Time – One Year Later’ September 2020). CCOO was relied on by the Brussels Labour Court in holding that the burden of proof was on the employer and the employee was successful as the employer did not discharge this (2018/AB/424). In France, the Cour de Cassation, relying on CCOO, held that it was for the employee to sufficiently particularise the claim in order to allow the employer respond to the claim, but also taking account of the requirement of the employer to register working time (RG 18-10.919 and see also 19-21.153 3rd February 2021). To note, the French civil procedure is a combination of inquisitorial and adversarial elements, and while there is the principle of contradiction, there is no direct cross-examination. In Nolan Transport v Antanas DWT 1117, the Labour Court held that the complainant must state their case with ‘sufficient particularity as to allow the Respondent to know, in broad terms, the nature of the complainant and the case which they are expected to meet.’ The Labour Court further held that the complainant also bore an evidential burden ‘to adduce such evidence as is available to support a stateable case of non-compliance’ and that would suggest a reasonable possibility of non-compliance. The Labour Court held that the employer would then be called upon to put into evidence its working time records. Where such records are available, it falls on the claimant to disprove their accuracy. Where there are no records, the Labour Court held that the burden then fell on the respondent to provide evidence of compliance from other sources. Nolan Transport v Antanas was decided in 2011 and therefore predates the CCOO judgment of the Court of Justice of the European Union. It also predates the adjudication officer’s (and Labour Court’s) duty to inquire into working time claims (introduced in 2015). CCOO emphasises the importance of effectiveness, in particular the singular importance of records. Other forms of evidence may not be as effective. In light of CCOO, the employee cannot be said to carry any sort of evidential burden in presenting their case. I find that as part of fair procedures in the context of a quasi-judicial or judicial process, the employee is, however, required to sufficiently particularise the case so that the respondent knows which records to present. This means, for example, that for breaches of sections 11 and 12, which days and section 13 and 15, which weeks. Once the complainant has particularised their case and there are no records, it falls on the employer to provide evidence of compliance. The adjudication officer can then determine whether the complaint is well-founded. This approach tallies with the adjudication officer’s duty to inquire, which also requires the complainant to particularise what contravention is alleged and when this took place. While it may be a matter of nuance, following CCOO, the complainant does not bear an initial evidential burden and in the context of an adjudication, is expected to particularise their claim. The onus is on the respondent to show compliance, primarily through records, but potentially via other evidence. It is for the employer to provide such evidence as to show compliance. It is likely, however, that the burden of proof shifting to the respondent in the absence of records will also have consequences for the standard of proof. The emphasis in CCOO on effectiveness is likely to mean that whatever evidence can be relied on by the employer to show compliance in the absence of records must be akin to the objectivity, reliability and accessibility of records. Also flowing from CCOO is that an employer who does not maintain records and whose employees work excessive hours cannot be in a better evidential position than an employer who has records but whose employees also work excessive hours. In respect of the current set of complaints, the complainant particularised her complaints as each complaint addresses a reference period and the nature of the alleged contravention. In line with section 25(4) and CCOO, the burden of proof fell on the respondent to show compliance in the absence of working time records. Burden of proof & cross-examination The complainant’s submission in this case was that the nature of the burden of proof and the complainant’s decision not to give evidence meant that the respondent did not have the right to cross-examine the complainant. It was submitted that there must be evidence of compliance for a particular time period in order for cross-examination to be allowed in respect of that time period. I have found that the complainant particularised her complaints and bore no evidential burden. The question is whether the complainant is correct that the respondent could not, therefore, cross-examine her when she had not given evidence. At the hearing, I indicated that the respondent retained this right, and this was when the complainant and her solicitor ended their participation at the hearing. The respondent witnesses gave evidence that the complainant took daily rest breaks. The respondent submitted time sheets of billable and non-billable work, but this did not record breaks. I find that the respondent was entitled to cross-examine the complainant, notwithstanding that the burden of proof lay with it in respect of the working time claims and the complainant did not give evidence. I do so for the following reasons. First, it is clear from Zalewski that cross-examination is a fundamental part of fair procedures. It is available, where sought, to all parties in employment law cases. Second, while not expressly referred to in section 41 of the Workplace Relations Act, it is well-established that the ‘opportunity to be heard’ encompasses the opportunity to cross-examine. Third, cross-examination is engrained in Irish quasi-judicial and judicial decision-making, as set out in MM. Fourth, cross-examination is not only challenging a witness’ evidence, but also eliciting information from the witness. Fifth, employment and equality law are replete with differing burdens of proof, from the civil burden of proof on the complainant in, say, a Payment of Wages claim, to, for example, the lower, prima facie burden on the claimant in an equality complaint, to, again by example, the presumption of an unfair dismissal. It would be impractical to parse a set of claims, allocating procedural rights according to differing burdens of proof. It would also not be correct for this administration of justice to disregard such a fundamental tenet as cross-examination. Sixth, it would be unfair and impractical to limit cross-examination where the burden of proof rests with the employee. In an equality complaint, for example, the complainant would have to establish a prima facie case of discrimination in order to shift the burden and acquire the procedural right of cross-examination. It would prove extremely problematic for claimants where they must show that an act was ‘wholly or mainly’ due to something, for example an unfair dismissal claim grounded on trade union membership or a protected disclosure. If the right to cross-examination is assigned according to the applicable burden of proof, and if the claimant must show evidence of discharging the burden of proof prior to being able to cross-examine, then it would be difficult for claimants to show sufficiently strong evidence that discharges the burden of proof where the standard of proof is a high standard such as ‘wholly or mainly’. Seventh, deciding whether or not a complaint is well-founded is only part of the job. Even if the adjudication officer determines that a complaint is well-founded (for example, because the employer has not discharged the burden of proof), the adjudication officer will have to decide the extent of the contravention. This will be the basis of an award of compensation and/or the terms of an order to comply. A respondent is surely entitled to cross-examine, i.e. to challenge or elicit information on the extent of any contravention, in order to make submissions on the redress to be awarded. Decisions on each complaint During the hearing, the complainant withdrew the complaints made pursuant to the Unfair Dismissals Act and the Redundancy Payments Act, as well as the section 15 OWTA claims. I have, therefore, marked these complaints as withdrawn. For the remainder, I have decided that they are not well-founded in accordance with the relevant redress provision. In order to make a decision in accordance with each redress provision, I must discharge the duties set out in section 41(5). Here, the respondent sought to cross-examine the complainant and for the above reasons, it was entitled to do so. The complainant left the remote hearing at this time and so cross-examination could not proceed. I am not, therefore, in a position to decide that the complaints are well-founded as this would disregard the respondent’s fair procedures. It follows that I decide that the complaints are not well-founded, equivalent to a ‘no-show’ decision. I have decided this in respect of the Organisation of Working Time Act complaints and the complaints pursuant to the Payment of Wages Act and the Terms of Employment (Information) Acts. |
Decisions:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2014 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00038618-001 I decide that this complaint pursuant to the Terms of Employment (Information) Act is not well-founded.
CA-00038618-002 I decide that this complaint pursuant to the Payment of Wages Act is not well-founded.
CA-00038618-003 The complainant withdrew this complaint pursuant to the Unfair Dismissals Act.
CA-00038618-004 The complainant withdrew this complaint pursuant to the Redundancy Payments Act.
CA-00038618-005 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 6th to the 10th January 2020. I decide that it is not well-founded.
CA-00038618-006 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 13th to the 17th January 2020. I decide that it is not well-founded.
CA-00038618-007 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 20th to the 24th January 2020. I decide that it is not well-founded.
CA-00038618-008 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 27th to the 31st January 2020. I decide that it is not well-founded.
CA-00038618-009 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 3rd to the 7th February 2020. I decide that it is not well-founded.
CA-00038618-010 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 10th to the 14th February 2020. I decide that it is not well-founded.
CA-00038618-011 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 17th to the 21st February 2020. I decide that it is not well-founded.
CA-00038618-012 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 24th to the 28th February 2020. I decide that it is not well-founded.
CA-00038618-013 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 2nd to the 6th March 2020. I decide that it is not well-founded.
CA-00038618-014 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 9th to the 13th March 2020. I decide that it is not well-founded.
CA-00038618-015 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 16th to the 20th March 2020. I decide that it is not well-founded.
CA-00038618-016 This is a complaint of a contravention of section 12 of the Organisation of Working Time Act in respect of the period of the 23rd to the 27th March 2020. I decide that it is not well-founded.
CA-00038618-017 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 13th to the 17th January 2020. I decide that it is not well-founded.
CA-00038618-018 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 20th to the 24th January 2020. I decide that it is not well-founded.
CA-00038618-019 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 27th to the 31st January 2020. I decide that it is not well-founded.
CA-00038618-020 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 3rd and 7th February 2020. I decide that it is not well-founded.
CA-00038618-021 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 10th to the 14th February 2020. I decide that it is not well-founded.
CA-00038618-022 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 17th to the 21st February 2020. I decide that it is not well-founded.
CA-00038618-023 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 24th to the 28th February 2020. I decide that it is not well-founded.
CA-00038618-024 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 2nd to the 6th March 2020. I decide that it is not well-founded.
CA-00038618-025 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 9th to the 13th March 2020. I decide that it is not well-founded.
CA-00038618-026 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 16th to the 20th March 2020. I decide that it is not well-founded.
CA-00038618-027 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 23rd to the 27th March 2020. I decide that it is not well-founded.
CA-00038618-028 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 30th March to the 3rd April 2020. I decide that it is not well-founded.
CA-00038618-029 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 6th to the 10th April 2020. I decide that it is not well-founded.
CA-00038618-030 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 14th to the 17th April 2020. I decide that it is not well-founded.
CA-00038618-031 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 20th to the 24th April 2020. I decide that it is not well-founded.
CA-00038618-032 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 27th to the 30th April 2020. I decide that it is not well-founded.
CA-00038618-033 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 5th to the 7th May 2020. I decide that it is not well-founded.
CA-00038618-034 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 11th to the 15th May 2020. I decide that it is not well-founded.
CA-00038618-035 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 18th to the 22nd May 2020. I decide that it is not well-founded.
CA-00038618-036 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 25th to the 27th May 2020. I decide that it is not well-founded.
CA-00038618-037 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 2nd to the 5th June 2020. I decide that it is not well-founded.
CA-00038618-038 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 8th to the 12th June 2020. I decide that it is not well-founded.
CA-00038618-039 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 15th to the 19th June 2020. I decide that it is not well-founded.
CA-00038618-040 This is a complaint of a contravention of section 17 of the Organisation of Working Time Act regarding notification of start and finish times in respect of the period of the 22nd to the 26th June 2020. I decide that it is not well-founded.
CA-00038618-041 This is a complaint of a contravention of section 20 of the Organisation of Working Time Act regarding not receiving paid annual leave prior to a period of annual leave. I decide that it is not well-founded.
CA-00038618-042 This is a complaint of a contravention of section 15 of the Organisation of Working Time Act regarding weekly hours in the reference period of December 2019 to March 2020. The complainant withdrew this complaint at the hearing.
CA-00038618-043 This is a complaint of a contravention of section 15 of the Organisation of Working Time Act regarding weekly hours in the reference period of November 2019 to February 2020. The complainant withdrew this complaint at the hearing.
CA-00038618-044 This is a complaint of a contravention of section 20 of the Organisation of Working Time Act regarding not receiving paid annual leave prior to the employment ending. I decide that it is not well-founded.
CA-00038618-045 This is a complaint of a contravention of section 21 of the Organisation of Working Time Act regarding unpaid public holidays. I decide that it is not well-founded. |
Dated: 26th July 2021
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Cross-examination - Burden of proof - Working Time Directive - Zalewski v Workplace Relations Commission - Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank |