Regina Doherty (Meath East, Fine Gael) | Oireachtas source

With regard to amendments Nos. 46 and 47, the penalisation provisions in the legislation provide that where an employee makes a complaint arising from any penalty against them, it shall be presumed until the contrary is proven that the employee concerned acted and acts reasonably and in good faith when making a complaint. That is a strong protection for the employee and it is then a matter for the employer to respond to the complaint in written submissions and by direct evidence. It is only at that stage that the independent adjudicator of the WRC considers both sides of the arguments before deciding whether the case is well founded. We have to ensure that there is no presumption before an independent adjudication and it is important that both sides get a fair hearing and that there is not a presumption. It would make the independent adjudication process invalid if we have decided on one arm as opposed to the other arm beforehand. The text is the same in section 10 and in most modern statutes. Many practitioners and other stakeholders have been critical in the past of a lack of uniformity of comparable provisions across employment legislation and accepting the amendment would change the tried and tested penalisation provisions that are well renowned in the State.

In a similar vein, amendment No. 48 uses a defence of objective justification, which is generally applied in age discrimination. Importing that language from a statute serving an entirely different purpose and use it for the purpose of the penalisation provisions in this Bill would not be appropriate. The point I made about consistency of provisions in employment law applies in this regard as well. I will not accept the amendments.