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

After Committee Stage, where this amendment was introduced, I instructed my officials to seek the advice of the Attorney General on the three amendments carried on Committee Stage. My officials and I thought that could create legal uncertainty and be problematic in practice. The advice was clear that the amendments should be deleted from the Bill. I also instructed my officials to seek the views of the Workplace Relations Commission, WRC, and the Labour Court on the same amendments. A copy of that communication was circulated to Deputies two weeks ago.

If we go back to square one, a penalisation provision never existed in the Terms of Employment (Information) Act 1994. We did not introduce it because we were lobbied by anybody - ICTU, Mandate or IBEC. We did it because it was the right thing to do. Employees need to feel safe in the knowledge that they can exercise their rights under employment law without any fear of penalisation. As we were starting from scratch, we found that the strongest anti-penalisation provision exists in Irish employment law, namely the Protection of Employees (Temporary Agency Work) Act 2012. An adjudication officer has to decide in all cases under the 1994 Act whether they are well founded or not. The burden of proof for that Act is established burden of proof across all other employment rights legislation. The Opposition amendment has inserted a second burden of proof into this penalisation provision and that is where the problem lies.

If this amendment ended up in the final Act, it would be bad law to have two different levels of burden of proof within the one Act. It would not be possible to adjudicate on one without opening up a liability of being adjudicated upon by a judicial review or appeal on the other. We would end up going around in circles. The person who has the ability to take the case against the employer, most likely, would end up having no recourse to justice. I think it was Deputy Penrose who mentioned Hobson's choice on Report Stage. He said this amendment would create a Hobson's choice for the adjudication officer because, no matter what burden of proof the decision was made upon, the losing side would say that the wrong one was used and that the other one should have been used. We would again be going around in circles.

I assure the Deputies no other employment legislation has two burdens of proof. Deputy Bríd Smith mentioned the Unfair Dismissals Act a fortnight ago. That is not the Act we are amending but even if it was, it still has only one burden of proof. By introducing a second standard of proof, the penalisation provisions will be unworkable, whichever standard of proof the WRC adjudicator or the Labour Court relies upon. It will be open to the aggrieved party, who most likely will be the employer, to challenge the decision by judicial review on the grounds that the adjudicator or the Labour Court should have relied on the other burden of proof instead of the one that they did rely on. We will go around in circles once again and have no clear way for an employee who has a particular grievance against an employer to get justice. The second standard of proof really creates a problem. To leave the relevant part of the Bill stand as it does today, with two different standards of proof will render what was potentially going to be a strong measure to protect employees completely unworkable and ineffective. That is why the amendments still stand and I am pressing them.

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