1 C.L.R. (SAWfDIh 1 I INTHEMATTEROFANAPPLICATION BYLOUIS IOURIS1 AGhNCY LTD ,OFNICOSIA FORAN ORDER OF CERTIORARI AND INTHE MATTER OFAJUDGMENT AND/OR ORDFR OF THE INDUSTRIAL DISPUTES COURT DAIED45 198S INAPPLICATION NO 57^/86 (Application No 126/88} 5 10 Evidence — Burden of proof— Wrongful dismissal claim foi damages before Industrial Disputes Court — Defence that claimant had retired voluntanly from the seri'ice with his employers — The Termination of Employment Law 24/67 asamended by I an 92/ > 79 sections 3
(1), 5 6
(1)and 7
(1)— Burden of proof lies on the employers The respondent filed an application in the Industnal Disputes Court claiming against hisformer employeis (thepresent applicants) damages for wrongful dismissal The present applicants alleged in tn e ' r defence to the said application that the present respondent retiredvoluntanly from their service ThetnalCourtruledthattheburdenotproofwasuponthepresent applicants who therefore had tostartfirst adducing evidence 15 Having obtained the necessary leave* the applicants applied for certioran quashing the said ruling The Court having quoted verbatim sections3
(1)6{l)and 7
(1)of the saidlaw and havingexplained theeffect of section5ofthesame law, Held dismissingthe application 20
(1)Under section 6
(1)the termination of such employment is presumed To rebut such presumption applicants allege that the respondent himself terminated his employment and that hewas not dismissed Thisisanallegationwhichtakesthecaseoutsidetheambit ofsection6
(1)•See
(1988)lCLR 405 763 In τβLouis Tourist
(1988)
(2)Once the presumption operates m favour of the respondent and the applicants advance an allegation in rebuttal of such presumption theburdenofproofliesuponthem toestablishthatthe claimant voluntanly retired from their employment bysubmittinghis resignation 5 Application dismissedwith costs Application. Application for an order of certiorari to remove into the Supreme Court for the purpose of quashing the ruling and/or order of the Industrial Disputes Court dated 4th May, 1988 whereby it was decided that the burden of proof was upon tht applicants tostart first adducing evidence Μ Tsangandes with D Papadopoulos 10 forthe applicants. Υ Yiasemis, forthe respondents SAWIDES J read the following judgment On the30th June 15 1988 on an ex-parte application onbehalf of theapplicants inthis case I granted leave to the applicants to apply for orders of certiorari and mandamus against the ruling of a Judge of the industrial Disputes Court dated 4th May, 1988 In pursuance to such leave counsel for applicants filed the present application 20 praying for an order of certiorari to remove into the Supreme Court for the purpose of being quashed the ruling and/or order dated4th May, 1988, of theIndustrialDisputesCourtby means of which the Court decided thatthe burden of proof was upon the applicants tostart first adducing evidence 25 The facts relevantto the presentcase are briefly as followsOn the 1st September, 1986, Angelos Yiassemides filed an application in the Industrial Disputes Court under No 572/86 against the present applicants claiming (a)damages for wrongful dismissal, (b) the benefits or any emoluments he was entitled to 30 under the law and/orcollective agreements, (c)costs The present applicants entered an appearance on the 16th February 1987, and in theirgrounds of defence they allegedthat the said Yiassemides submitted his resignation and/or retired voluntanly from theirservice on/orabout 31st July, 1986, and for 35 this reason they denied his claim After hearing argumentinthisrespectby counsel for thepresent applicants the Courtdecided that under the provisions of s 6
(1)of 764 1 C.L.R. In re Louis Tourist Savvides J. The Termination of Employment Law No. 24/67 and relying on the summary procedure contemplated K' law for the purpos-' of the speedy trial ol this case decided thai tin-nuiden of ptool wa^ upon the present applicants who had to Mart first adducing 5 evidence. In arguing his case counsel for applicants submitted that the Court wrongly relied on s6(l) and s 7
(1)of Iaw 24/67 and misinterpreted theprovisions containedtherein.Thepie;;ent case. counsel submitted, is not a case of termination of employment 10 within the meaning of s.3(l) of Law 24/67 the effect of which. subject to the provisions of s.5. would be to shift the burden of proof on the employers but it is a ca>e where the employee has himself submitted his resignation and/or iehred voluntanly horn the service of the applicants 15 Counsel contended that once the case does not fall within the exemptions enumerated in the said law by virtue oi which the burden of proof isshifted totheemployer, thegeneral ink' thatthe burden of proof lies on the person who makes an allegation, and in this case the respondent who was the applicant m the mam 20 application, applies and. therefore, the ruling of the Court contravenes such principle Counsel for therespondent, on theotherhand argued that th<• learned trial Judge properly applied the law in the circumstances of the present case and exercised his discretion accordingly He 25 submitted that under s 12
(11)of the Annual Leave with Emoluments Law. 1967 (Law 8/67) the power is vested in the Court todecide the procedure tobe followed ina particular case Furthermore, counsel submitted, that once the allegation of ihe applicants was thatthey did not terminate the employment of the 30 respondent but itwas hewho submitted hisresignation thebuiden shifts on them to start their case first in order to prove such allegation by virtue of which they seek totakethiscase outside the provisions of the law which otherwise would have been applicable. They should have theburden tostart first toprove such 35 allegation. 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 ιοχόοςτοι> π α ρ ό ν τ ο ς άρθρου, ο εργοδότης τερματίζη δι' 765 Sawides J. In re Louis Tourist (198S) υιυνοηπυΐε λόγον άλλον ή το)ν εν τ ω αρθρίο 5 εκτιθεμένων λόγων, την απασχόλησιν εργοδοτουμένου, ο οποίοςέχει απασχοληθήσυνεχώς υπ' α υ τ ο ύ επί είκοσι εξ τουλάχιστον εβδομάδας, ο εργοδοτούμενος κέκτηται δικαίωμα εις αποζημίωσιν υπολογιζομένην συμφώνως προς τον Πρώτον Πίνακα.» 5 The translation in English readsasfollows (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 10 who has been continuously employed by him for at least twenty-six weeks, the employee has a right to compensation calculated maccordance with the FirstSchedule ) S 5 of Law 24/67 enumerates thecases inwhich terminationof employment does notgive right to a claim for compensation 15 S 6{1} of the Law deals with theburden of proof andprovides as follows «6.-
(1)Καθ' οιανδήποτε ενώπιον τ ο υ Διαιτητικού Δικαστηρίου διαδικασίαν ο υπό τ ο υ εργοδότου τερματισμός απασχολήσεως τ ο υ εργοδοτουμένου 20 τ ε κ μ α ί ρ ε τ α ι , μέχρις αποδείξεωςτ ο υ εναντίου, ως μη γενόμενος διά τίνα των εν τ ω άρθρω 5 εκτιθεμένων λόγων.» The translation mEnglish reads asfollows (In any proceedings before the Industrial Disputes Court thereshall be arebuttable presumption thatthe terminationof 25 the employment of the employee by the employer has·not been for one of the reasons set out in section 5 (The underlining ismine). S 7
(1)of Law 24/67 provides as follows «7.-0) Ό τ α ν εργοδοτούμενος νομίμωςτερματίζη την 30 απασχόλησιν τ ο υ παρ' εργοδότη λόγω τηςδιαγωγής τ ο υ εργοδότου, τ ό τ ε οτερματισμός ούτος θεωρείται ως τερματισμός υπό τ ο υ εργοδότου υπό την έννοιαντ ο υ άρθρου 3.» The translation in English reads as follows (Where an employee lawfully terminates his employment 766 35 1 C.L.R. In re Louis Tourist S a w i d e s J. with an employer because of the employer' s conduct,such termination is deemed to be termination by the employe) within the meaning of section 3.) In the present case it is the allegation of the respondent5 employee that the applicants-employers terminated his employment. Therefore, the termination of the employment• the applicantisamatterin issuein thepresent proceedings. By their defence the applicants deny that they terminated [\Λ employment of the applicant and advance the allegation that the 10 respondent employee submitted his resignation. This is also a matter in issue before theCourt. Under s.6(l) the termination of such employment is presumed. To rebut such presumption applicants allegethatthe respondent himself terminated hisemployment andthathewas not dismissed. 15 This is an allegation whichtakes the case outside the ambit of s.6(l). Once thepresumption operates infavour of therespondent and the applicants advance an allegation in rebuttal of such presumption the burden of proof lies upon them to establish that the claimant voluntarily retired from their employment by 20 submitinghis resignation. Bearing inmindalltherelevant provisions of Law 24/67andmy finding as above the learned trial Judge rightly came to the conclusion that the burden lied upon the employers to start their case first. 25 Inthe result the application is hereby dismissed with costs. Application dismissed with costs against applicants. 767