Willie Penrose (Longford-Westmeath, Labour) | Oireachtas source

We have been the recipients of advice from the Minister, which we have to take cognisance of because it is important that, in our desire to implement legislation, we do not make the task more difficult for the people whose condition we are trying to improve. The Labour Court has considered the question of the condition of an employee being demeaned, and some detriment being caused to his or her conditions of employment, if he or she asserts a legal right including the making of a complaint in good faith. The Minister has been very generous in informing us of all the issues that arise but the question arises of penalisation. We assume that a change of working hours without consultation is detrimental and is an adverse act to an employee, which could have consequences. I was aware of the case of O'Neill v. Toni & Guy on the question of shifting the burden of proof, which is somewhat analogous to the shifting of the burden of proof in section 85A of the Employment Equality Act.

We want to make sure there is equivalence regarding what we pass here. The question to be grappled with is whether section 26A imposes a different standard or onus of proof. In the natural course of events, and in accordance with other statutory enactments relevant to employment law rights and obligations, the complainant or employee would make an complaint pertaining to, or under, a particular section or subsection of an Act or regulation relevant to the particular employment. One then needs to establish, by way of background circumstances, any facts or evidence possible to deduce or infer from the presentation of the complainant or employee that led to his or her detriment or dismissal or to any other sanction. Then the burden of proof shifts and it is up to the employer to establish to the satisfaction of the Labour Court, the Workplace Relations Commission or the Circuit Court, on the balance of probability standard, that is, the civil standard of proof, that the complaint made by the employee did not lead to the complainant or employee being dismissed. We have to be concerned if anything passed in this House gives rise to difficulties in construction, at a practical level, at the Labour Court or anywhere else. We rely heavily on such tribunals and precedent.

Deputy O'Dea has proposed that we look at this to see if we can improve it or bring forward an alternative to deal with this issue and ensure equivalence and I would support it being explored in the Seanad, where more time will be available.

See this speech in context