The complainant was laid off due to the Covid-19 pandemic. She brought a series of complaints under the Organisation of Working Time Act, as well as singular complaints under the Terms of Employment (Information) Act and the Payment of Wages Act, the Unfair Dismissals Act and the Redundancy Payments Act respectively. The complaints under the Unfair Dismissals Act and the Redundancy Payments Act were later withdrawn.

The complainant submitted that the respondent failed to maintain working time records as required by Section 25 of the Organisation of Working Time Act. The respondent submitted that the nature of the complainant’s role meant that she could choose her breaks. The respondent did not maintain its own records.

Organisation of Working Time Act and the Burden of Proof

 The Adjudication Officer considered that, in light of the CJEU case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank C-55/18, the employee does not carry any sort of evidential burden in presenting their case. However, the employee is, as part of fair procedures, required to sufficiently particularise their case so that the respondent knows which records to present i.e., stating which days or weeks are at issue. Once the complainant particularises their case and the employer has no records, it falls back on the employer to prove compliance.

If the employer does not have records, the most likely interpretation of CCOO is that the evidence relied on to show compliance must be akin to the objectivity, reliability and accessibility of records. The Complainant in this case did particularise her complaints. Thus, the burden of proof was on the respondent to show compliance in the absence of records.

The Role of Cross-Examination

A key issue in the case was the role of cross-examination. It was submitted by the complainant’s solicitor that the complainant should not be cross-examined because she had not given evidence and the burden of proof was on the respondent. However, the Adjudication Officer, Kevin Baneham BL, indicated that he was obliged to allow cross-examination based on the procedural rights of the respondent. At this point, the complainant and her solicitor withdrew from the hearing.

The Adjudication Officer noted that the complainant’s argument was based on the fact that the burden of proof was on the employer to show compliance with the Organisation of Working Time Act. However, not all of the complaints were made under this Act. Even if the only claims were working time claims, the right to cross-examine is not determined by a burden of proof. Rather, it is a procedural right of the respondent irrespective of whether the complainant gave direct evidence. The Supreme Court decision in Zalewski v Workplace Relations Commission [2021] IESC 24 was cited as indicating the importance of cross-examination as ‘a fundamental part of fair procedures.’

The Adjudication Officer further noted the duties of an Adjudication Officer as set out in Section 41(5) of the Workplace Relations Act 2015. Whilst these do not specifically refer to cross-examination, they refer to the duty to inquire into the complaint and to allow the parties to be heard. He noted that ‘it is well-established that the opportunity to be heard encompasses the opportunity to cross examine.’

Further, the Adjudication Officer noted that a purpose of cross-examination was to elicit facts and this purpose is not confined to evidence given by the witness but can be regarding any relevant fact. Therefore, cross-examination was available to the respondent despite the fact that the complainant had not given evidence.

The Adjudication Officer also noted that within employment and equality law there are varying burdens of proof. Where a series of complaints have been taken, it would be impractical to allocate procedural rights according to these differing burdens. Further, the Adjudication Officer considered what would happen in the inverse scenario, where the burden of proof was on the employee. He noted that it would be unfair and impractical to deny the employee the opportunity to cross-examine witnesses, for example, in an equality complaint, where they must establish a prima facie case of discrimination.

Finally, the Adjudication Officer noted that not only must he decide if a complaint is well-founded, he also must decide the extent of the contravention in order to assess redress. Cross-examination is important for addressing the appropriate redress to be awarded.

Due to the fact that the complainant and solicitor left the hearing, the Adjudication Officer concluded that, in accordance with fair procedures, he could not find that the complaints were well-founded.

Concluding Remarks

This case presents a valuable analysis of the role of cross-examination in hearings before the Workplace Relations Commission. Clearly, complainants cannot rely on the fact that they are not giving evidence as a means to avoid cross-examination. Further, the burden of proof will not be relevant in assessing whether cross-examination is available. The case also clarifies the burden of proof in Organisation of Working Time claims. Whilst the burden is on the respondent to show compliance, the complainant must sufficiently particularise their claim so that the respondent knows which records to present.

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