clr/1988/1988_1_405.pdf

(1985)1C.L.R*250. 5 10 15 Evidence —Burden ofproof — Wrongfuldismissal, claimfor,before the Industrial Disputes Court—Defence alleging voluntary retirement —Onwhom theburdenofprooflies— TheTermination ofEmployment Law24/67, sections 3

(1)and 6

(1)Angelos Yiassemides filed against the present applicants an application before the Industrial Disputes Court claiming damages for wronqful dismissal. The defence to that application was that Yiassemides had left voluntarily from the service of the present applicants. However, the Industrial Disputes Court ruled that under section 6

(1)*of the Termination of Employment Law.24/67, the burden of ' proof was upon the present applicants, who had to start first adducing evidence. Hence thisapplication. 20 Held,grantingtheapplication:

(1)Atthisstagetheapplicantshave tomake outa «prima facie» casesufficiently tojustify the grantingof leave.Whatconstitutessuchacasehasbeen considered inReKakos

(1985)1 C.L.R. 250.

(2)In this case the applicants succeeded in establishing a prima facie case. Application granted. 'Quoted atp. 409 post. 405 Inre Louis TouristAgency

(1988)Casesreferredto: ReSawa «Pambos>

(1986)1C.L.R.518; ReKotsonisandAnother

(1986)1 C.L.R.634; ReKakos

(1985)1 C.L.R.250; Sidnellv.WilsonandOthers[1966]1 AllE.R. 681; 5 ReLP. LoucaidesLtd

(1986)1 C.L.R.154; ReMobilOilCyprusLtd

(1985)1 C.L.R. 781; RePsaras

(1985)1 C.L.R. 561. Application. Application for leave to apply for an order of certiorari tobring 10 up and quash the decision of the Industrial Disputes Court in Application No. 572/86 and for an order of mandamus directing such Courttodelivercopy ofitsrecord orjudgmentdated4.5.88. N. Papaefstathiou, for the applicant. Cur.adv. vult. 15 SAWIDES J. read the following judgment. By the present application applicant applies for (

1. a)Leave to apply for an order of certiorari to move to the Supreme Court for the purposes of quashing the decision of the Industrial Disputes Court in Application No. 572/86, by virtue of 20 which it was decided that the burden of proof shifted on the applicants in the aforesaid application and were ordered to proceed first in adducing evidence toprove their case. (
2. b)An order of mandamus directing the Industrial Disputes Court to deliver copy of the record of 4th May, 1988 and or the 25 judgment of4th May, 1988. (
3. c)An order directing that any further proceedings in Application No. 572/86 before the Industrial Disputes Court are stayedpendingthedetermination oftheapplication foranorderof certiorari and mandamus. The facts relevant to the present Application are briefly as follows: On 1st September, 1986, Angelos Yiassemides filed an 406 30 1C.L.H. InreLouisTouristAgency Sawides J. application in the Industrial Disputes Court under No. 572/86 against the present applicants claiming (a)Damagesfor wrongful dismissal; (b)The benefits and any emoluments which he was entitled to 5 under the lawand/or the collective agreements; (c)Costs. The present applicants entered an appearance on the 16th February, 1987,and intheirgrounds of defence they alleged that the said Yiassemides submitted his resignation and or retired 10 voluntarily from theirservice on orabout 31stJuly, 1986,and for thisreason they denied hisclaim. Afterhearingargumentinthisrespectbycounsel forthe present applicants theCourtdecided thatunder theprovisions ofs.6(l)of the Termination of Employment Law No. 24/67 and relying on 15 the summary procedure contemplated by law for the purpose of the speedy trial of this case the burden of proof was upon the present applicants who had tostartfirst adducing evidence. The applicants on 5th May, 1988, applied to the Industrial Disputes Court asking for copies of the record of the 4th May, 20 1988 and/or the decision of the Court of the same date but according totheir allegation the Court refused tosupply same.In fact by letter dated 12th May, 1988, the Registrar of the Court replied to counsel for applicants as follows: 25 30 «With reference to your letter 10/206/109 dated 5.5.88I have been directed toinform you that thehearing of the case on the substance has been adjourned to the 14th October, 1988. Whatever has been said preliminary tothe hearing has been recorded bythestenographer and willbetranscribed after the completion of the hearing of the case.» This isobviously the reason for prayer under paragraph (
4. b)for an order of mandamus directing the Court to supply them with copies of the record. When thecase came up before me and counsel for applicants raised hiscomplaint thatcopyoftherecordhad notbeen supplied 35 to him which was material for the determination of the present Application I gave directions to the Chief Registrar to ask the Registry of the Industrial Disputes Court to supply counsel for ,407 Sawides J. In re LouisTouristAgency

(1988)applicants with the notes of the record and in fact such minutes were given to him on the 20th May, 1988. Therefore, the prayer for leave to issue an order of mandamus remains without any substance and is hereby dismissed. Itiswell settled thatthe power of theCourttograntleave for an 5 order of certiorari is a discretionary one.The question which has to be considered is not whether the order applied for should be issued but whether on the material before the Court there is a «prima facie» case made out sufficiently tojustify the granting of leavetoaperson tomove theCourtindue course toissueanorder 10 of certiorari. Useful reference may be made in this respect to the cases InRe Sawa «Pambos*

(1986)1 C.L.R. 518 at pp. 522 and 523 and InRe Kotsonis and Another

(1986)1 C.L.R. 634. What constitutes a prima facie case has been considered by the FullBench inthecase of//? Re Kakos

(1985)1C.L.R.250 inwhich 15 reference is made to the observations of Diplock L.J. inSidnell v. Wilson and Others [1966] 1All E.R.681 atp. 686. There is a line of decisions of this Court which deal with the principles governing thegranting of leave toapply for an orderof certiorari; suffices it to refer to the most recent ones. In Re LP. 20 Loucaides Ltd.

(1986), 1 C.L.R. 154; InRe Mobil Oil Cyprus Ltd.

(1985)1 C.L.R. 781; In re Psaras

(1985)1 C.L.R. 561 and the cases of Kotsonis and Pambos (supra). Counsel for applicantsinarguing thisapplicationsubmittedthat the Court wrongly relied on s.6{l) and s. 7

(1)of Law 24/67 and 25 misinterpreted theprovisions containedtherein.Thepresent case, counsel submitted, is nota case of terminationof employment as provided by s. 3(1} of Law 24/67, theeffect ofwhich subject tothe provisions ofs.5 istoshift theburdenof proof ontheemployer but itisacase where theclaimanthashimself submittedhisresignation 30 and orretired voluntarily from theservice of the applicants. S. 3 of Law 92/79, which repealed s.3 of Law 24/67, reads as follows: «3.

(1)Ό τ α ν , κατά ή μετάτην έναρξιντης ισχύος τ ο υ π α ρ ό ν τ ο ς ά ρ θ ρ ο υ , ο εργοδότης τερματίζη δι 35 οιονδήττοτε λόγον άλλον ή τ ω ν εν τ ω ν ά ρ θρ ω 5 εκτιθεμένων λόγων, την απασχόλησιν εργοδοτουμένου ο ο π ο ί ο ςέχει αττασχοληθήσυνεχώς υ πα υ τ ο ύ επίείκοσι* εξτουλάχιστονεβδομάδας, ο εργοδοτούμενοςκέκτηται 408 1 C.L.R. In re LouisTouristAgency S a w i d e s J. δικαίωμα ειςαποζημίωσιν υπολογιζομένην συμφώνως προςτον Πρώτον Πίνακα:» The translationin English reads as follows: 5 10 (Where, on or after the commencement of the present section, the employer terminates for any reason other than those set out in section 5, the employment of an employee who has been continuously employed by him for at least twenty-six weeks, the employee has a right tocompensation calculated inaccordancewith the FirstSchedule.) S. 5 of Law 24/67 enumeratesthecases inwhich termination of employment does notgive right toa claim forcompensation. S.6(l)of theLaw deals with theburdenof proof andprovides as follows: 15 20 «6.

(1)Καθ οιανδήποτε ενώπιον του Διαιτητικού Δικαστηρίου διαδικασίαν ο υπό του εργοδότου τερματισμός απασχολήσεως του εργοδοτουμένου τεκμαίρεται, μέχρις αποδείξεως του εναντίου, ως μή γενόμενος διό τινά των εν τω άρθρω 5 εκτιθεμένων λόγων.» The translationinEnglish reads as follows: 25 (In any proceedings before the Industrial Disputes Court thereshallbe arebuttablepresumptionthattheterminationof the employment of the employee by the employer has not been for one of thereasons set outinsection 5.) S.6(l) clearly speaks about terminationof employment by the employer. The applicants inthe present case deny thatthere was any termination of employment and claim that the claimant voluntarily retired from the employment of the* applicants by 30 submitting hisresignation and,therefore, a case of termination of employment underthelaw does notarise. The question which has tobe considered by me at thisstage is notwhethertheorderappliedfor shouldbe issued butwhetheron the material before me there is a prima facie case sufficiently to 35 justify the granting of leave to apply for an order of certiorari bearing in mind the meaning which should be attributed to the word «prima facie». 409 S a w l d e s J. In re LouisTourist Agency

(1988)Inthe light of the materialbefore me,I amsatisfied thataprima facie arguable case has been made out and Imake the following order: (a)The applicants are granted leave to apply in thiscase for an order ofcertiorariwithin onemonthfrom today.Any oppositionto be filed within(onemonthfrom service of such application. 5 (b)Theproceedings inApplication 572/86before theIndustrial Disputes Court are hereby stayed for one month from today and after the applicants apply within that period for an order of certiorarithensuch stay shall continuetobe operative untilfurther χο order of thisCourt. (c)Copy of thisorderto be sent totheRegistrar of theIndustrial Disputes Courtand be communicatedto theJudge concerned. Applicationgranted. 410