ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00039227

Parties:

Complaint:

Date of Adjudication Hearing:  23/03/2023 and 06/12/2023 14/02/2025 and 20/04/ 2026

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.

In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee  was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal. Gross Misconduct might be considered a substantial reason.

In accordance with Section 41(4) of the Workplace Relations Act, 2015, following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 and made to the Director General, a referral can be made by the said Director General of this matter to the Adjudication services. I can confirm that I (as an appointed Adjudication Officer) have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the course of the hearing.

In this instance the  Complainant has brought two further complaints of two contraventions of the Payment of Wages Act, 1991 which is an Act contained in Schedule 5 of the Workplace Relations Act of 2015. and where such a complaint is presented the Director General is empowered to refer that complaint forward for adjudication by an Adjudication Officer pursuant to Section 41(4) of the Workplace Relations Act, 2015.

A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a complaint of an unlawful deduction having been made from the Employee’s wage. Section 5 of the Payment of Wages Act provides that an employer must pay wages that are properly payable to an employee. Pursuant to Section 6 of the said 1991 Act, and in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.

Background:

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in anticipation of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statement or evidence is an offence.

This matter proceeded over the course of a number of days. An issue arose as to how the Respondent’s evidence was being adduced and, following legal argument, I delivered an Interim Direction on a point of Law in or around 24th of February 2026.

The Interim Direction is set out herein as follows:-

ADJ File - 00039227 -  Mr Conall McSorley    -v-    Gbe Technologies Unlimited company

Parties:

Representatives:

Background:

Complaint form herein issued on the 12th of May 2022. The complaints specified at that time were:

CA-00050599-001 -  a complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00050599-002 – a complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00050599-003 – a complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

Regarding the claim for Unfair Dismissal the Complainant set out the following in his complaint form:

Full details of Claim will be sent separately; however, Complainant was dismissed with no procedure being followed. At a meeting, the Complainant was informed by Brian O'Sullivan of the Respondent Company, that his employment would be terminated with a month's notice. No valid reason was given for dismissal.

This matter was initially listed for hearing on the 23rd of March 2023. Just prior to that date the Respondent (through its Solicitor, Jacob and Twomey Solicitors.) submitted a submission in the ordinary way. It became clear from the submission that the Respondent was challenging the nature of the relationship between the parties and denied that there was an employment relationship. It asserted that the Complainant was engaged on the basis of a contract for service The Respondent submitted that this issue and other preliminary issues had to be addressed, stating:

Preliminary Issues

1.The Complainant, Mr. Conall McSorley, is not and never has been an employee of the Respondent, GBE Technologies Unlimited Company.

In those circumstances, the Respondent denies that it ever dismissed Mr. McSorley within the meaning of the Unfair Dismissals Acts.

The Complainant is put on full proof of his claims.

2. Whilst Mr. McSorley was an independent contractor providing services to the Respondent between February 2018 and January 2019, that relationship ended at that point of time. Even if the Complainant were to argue (and the WRC were to accept) that he was an employee during the said period (which is denied), any claim arising from that period is out of time or statute-barred as and from July 2019.
3. The Complainant is the sole director of SBF Consultants Limited; a company with which the Respondent had a contractual relationship for a period of time between 2019 and 2021. In those circumstances, the Complainant was not an “employee” within the meaning of any of the Acts under which complaints have been referred. For that reason, it is respectfully submitted that:
4. the Workplace Relations Commission has no jurisdiction in relation to the matter;
5. the complaints are misconceived and without any legal basis; and
6. the complaints should be dismissed

As this is a primarily an Unfair Dismissal case wherein the fact of an employer/employee contract of service relationship is a pre-requisite, I was and am bound to determine as a preliminary issue whether this was a case of a Contract for Service or a Contract of Service. It was agreed with the parties that this issue needed to be determined in the first instance.

On the 23rd of March 2023 the Complainant gave his evidence on Affirmation. The Complainant gave his evidence in chief covering all the usual indicators to try and establish that he was an Employee. He was asked about how he was being managed, he was asked about the office set up and whether he received the Employee Handbook etc. His evidence took most of that day.

The case resumed on the 6th of December 2023 at which time the Complainant was due to be cross-examined by the Respondent Solicitor.  The cross examination was robust and tended to dwell on the issue of how the Complainant was being paid by the Respondent company. The evidence is that the Complainant set up a company to allow money to be paid to him gross.

It is fair to say that the Respondent Solicitor did not ask questions about the workplace environment – where the Complainant had sat, the hours he was in the workplace, and how the Complainant interacted with Management etc. In short, the evidence given by the Complainant concerning his presence and activity in the physical workplace was not challenged in the course of cross examination in any meaningful way.

The Complainant had no other witness to assist or provide evidence regarding the issue of the relationship between the parties. At the conclusion of the cross examination, I was invited by the Respondent Solicitor to make a finding that there was no contractual employment relationship between the named Complainant and the proposed Employer, and that the only relevant contractual relationship was between a company set up by the Complainant and the Respondent company. I was asked by the Respondent to decline jurisdiction on this basis.

I took time to consider this application and ultimately declined to decline jurisdiction. I noted that I needed to better understand what the Respondent understood it was doing in engaging with the Complainant through the conduit of a newly incorporated company. I signalled that the application (to decline jurisdiction) could be re-made in due course if appropriate.

It was now for the Respondent witnesses to reply to and/or deny the assertions made by the Complainant concerning his employment status. The Respondent put its first witness into evidence. This was the CEO of the Respondent company. Within a few minutes of this evidence getting underway, the Respondent witness was giving evidence concerning the office set up and about his own personal interaction (as a Senior Manager) with the Complainant. It is fair to say that the evidence being adduced by the CEO as a witness was evidence that had not previously been put to the Complainant during the cross-examination of the Complainant.

Counsel for the Complainant raised an objection to this line of questioning. His argument was that as the Complainant had not been asked about these issues in cross-examination, then there was an assumption that these matters must be considered to be uncontested. If these facts are considered uncontested, then the Respondent witness could not be allowed contradict them in his evidence.

Per the Complainant’s Counsel, the obligation is on the Respondent to put its full case to the Complainant for comment in the course of the Complainant’s cross examination.

This brought the hearing to something of an impasse.

Ordinarily, I would direct that the Complainant be allowed to be put back into evidence to allow the Respondent conduct a more thorough cross examination and put those matters to the Complainant which had not previously been put to the Complainant and also to give the Complainant an opportunity to address matters which the Respondent Solicitor intended to elicit from his own witnesses. To my mind this was a relatively easy way to remedy a situation where the Respondent is extracting evidence from his own witness which has not previously been put to the Complainant on cross-examination.

The Complainant’s legal team refused to allow me to recall the Complainant for the sole purpose, it says, of shoring up the Respondent’s case.

It was clear to me at this point that the Respondent’s Representative might be considered to have made a mistake which had hamstrung his client’s case and that the Complainant’s representative was now willing to exploit that situation for the benefit of his client. I was implicitly told that if I insisted that the Complainant be returned to complete evidence then the Complainant would withdraw. I was further told that if I allowed the Respondent representative to continue to elicit information from his witness which had not been previously put to the Complainant then the Complainant would withdraw.

I noted for the benefit of the parties that I am an Adjudicator officer to whom a complaint or dispute is referred and, as such, I have a Statutory right and obligation to inquire into the complaint. Per Section 41(5) (a) An adjudication officer to whom a complaint or dispute is referred under this section shall—

(i) inquire into the complaint or dispute,

It is open to me, in the circumstances, to raise issues which have not been covered in the course of evidence.

Counsel for the Complainant rejected that I am so entitled, and asserted that in recognition of the fact that the Adjudication process amounts to the administration of Justice I am, in fact, obliged to adhere to the rules of evidence commonly recognised in the ordinary Courts.

The rule in question is known as the rule in Browne and Dunn. Browne v. Dunn (1893) 6 R. 67,H.L. is a House of Lords decision on the rules of cross examination. From this case came the common law rule known as the "The rule in Browne v Dunn". The rule in Browne v Dunn essentially entails that a cross examiner cannot rely on evidence that is contradictory to the testimony of the witness without putting the evidence to the witness in order to allow them to attempt to justify the contradiction.

Therefore, under this rule if a witness gives testimony that is inconsistent with what the opposing party wants to lead as evidence the opposing party must raise the contention with that witness during cross-examination. This is intended to prevent “ambushing” witnesses and ensures fairness in legal proceedings. The rule is rooted in the concept of fairness, ensuring that witnesses are not surprised by contradictory evidence and that an opposite party is on notice of the specific aspects of testimony being contested. Overall, it maintains the integrity of the hearing process.

The rule in Browne v Dunn is a crucial aspect of the adversarial legal system, promoting fairness and transparency in the examination of witnesses. It ensures that all parties have a fair opportunity to present their case and challenge the credibility of witnesses effectively. I have underlined the act that the rule seemingly applies in the adversarial legal system and it’s status in the inquisitorial system is less clear.

If the rule in Browne v Dunn is not adhered to and a party fails to confront a witness with contradictory evidence during cross examination, the Court may impose various remedies. Certainly, this could involve the Court drawing an inference that the witness’ evidence is true, thereby prohibiting the other party from introducing contradictory evidence later. This is the Complainant’s position.

A less drastic measure might of course to be allowing the witness to be recalled to address the contradiction. This is the Respondent’s position.

Counsel for the Respondent accepts that the WRC/Adjudication process is involved in the administration of justice, but rejects the notion that the WRC is somehow bound by the same stringency that operates in the High Court. Counsel for the Respondent asserted that I was bound to act fairly and lawfully, and in those circumstances I ought to put into operation one of two options. Either I recall the Complainant for a further cross examination by the Respondent representative or I myself make my own inquiries so as to shore up the Respondent gap.

The Respondent also suggested that all that he was doing was putting an alternative perspective on the facts already put into evidence by the Complainant in the course of his examination-in-chief. However, this still does not, to my mind, get him over the obstacle of raising factual issues through his witness which he had not previously allowed the complainant to comment on.

It was, in the circumstances, agreed by the parties that this was a stand-alone issue to be dealt with before completing the preliminary issue which needed to be thrashed out before dealing with the substantive issue. I invited parties to prepare submissions and address me.

The parties came together again on the 27th of May 2025 for the purpose of legal submissions concerning how this matter might proceed before the WRC.

The Complainant’s submission received 14th February 2025:

The requirement to put one’s case in cross-examination is a fundamental concept of the fair procedures and due process necessary for the proper administration of justice. There was a fundamental failure on the part of the Respondent herein to conduct a full cross examination. The Complainant is entitled to assert that there was an intention not to put its case in cross-examination to the Complainant. It is presumed the action (or lack thereof) was deliberate.

The Complainant is under no obligation on a complainant to recommence evidence under oath for the sole purpose of enabling the other side in litigation to mend its fundamental failings. The Complainant is not, and will not be recalled by his Counsel for the purpose of a second cross-examination by the Respondent. To recall the Complainant would be wholly prejudicial to his case. 

It is absolutely accepted that the Adjudication Officer has statutory investigatory powers pursuant to the Workplace Relations Act 2014. However the Supreme Court in the much quoted case of Zalewski v An Adjudication Officer [2022] 1 IR 421 has left no ambiguity surrounding the fact that the WRC is administering justice. O’Donnell J (as he was then) held that:

… in my view, the function of the WRC, and the Labour Court on appeal, is the administration of justice. It is not coincidental that the parallel jurisdiction in the UK is conferred upon a tribunal understood to be performing a judicial function and part of the judicial system….

….the function being performed and the power being exercised must comply with the fundamental components of independence, impartiality, dispassionate application of the law, openness, and, above all, fairness which are understood to the essence of the administration of justice.

The Complainant asserts that whilst it is entirely appreciated that the Adjudication Officer has a wide discretion in terms of the running of the hearing, it is a requirement (as per the dicta in Zalewski) that any discretion exercised would not reduce the justice administered to a standard below the standard administered in the Courts under Article 34 of the Constitution.

The case law wherein the rule in Browne and Dunn was considered has been set out in the submission. It is a rule embedded in the adversarial system to make sure that the trial is fair. There is a requirement that a witness not be discredited or impugned without an opportunity of defence and reply. The rule has been most recently affirmed in the UK Supreme Court case of TUI UK Ltd v Griffiths [2023] UKSC 4. case of was opened to me. The Court in TUI concluded by summarising the position in terms of the rule in Browne v Dunn:

In conclusion, the status and application of the rule in Browne v Dunn and the other cases which I have discussed can be summarised in the following propositions:

(i)     The general rule in civil cases, as stated in Phipson, 20th ed, para 12-12, is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted. That rule extends to both witnesses as to fact and expert witnesses.

(ii)     In an adversarial system of justice, the purpose of the rule is to make sure that the trial is fair.

(iii)     The rationale of the rule, ie preserving the fairness of the trial, includes fairness to the party who has adduced the evidence of the impugned witness.

(iv)     Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy. An expert witness, in particular, may have a strong professional interest in maintaining his or her reputation from a challenge of inaccuracy or inadequacy as well as from a challenge to the expert's honesty.

(v)     Maintaining such fairness also includes enabling the judge to make a proper assessment of all the evidence to achieve justice in the cause. The rule is directed to the integrity of the court process itself.

(vi)     Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty.

(vii)     The rule should not be applied rigidly. It is not an inflexible rule and there is bound to be some relaxation of the rule, as the current edition of Phipson recognises in para 12.12 in sub-paragraphs which follow those which I have quoted in para 42 above. Its application depends upon the circumstances of the case as the criterion is the overall fairness of the trial. Thus, where it would be disproportionate to cross-examine at length or where, as in Chen v Ng, the trial judge has set a limit on the time for cross-examination, those circumstances would be relevant considerations in the court's decision on the application of the rule.

(viii)     There are also circumstances in which the rule may not apply: see paras 61-68 above for examples of such circumstance

The Complainant referenced Irish case law wherein the rule was positively referenced. These are McDonagh v Sunday Newspapers Ltd [2018] 2 IR 1 and RAS Medical Ltd v Royal College of Surgeons [2019] 1 IR 63.

The submission offers McGrath On Evidence as succinctly capturing the position as follows: 

If a party fails to [put his case in cross examination] then the trial judge has a discretion as to whether to admit the contradictory evidence, but in general, it will not be admitted unless the witness is recalled and the evidence put to him or her and an opportunity given commenting on it.

In the High Court case of Carlo Tassara Management Sa v Eire Comosites Teormanta [2018] IEHC 182, Ms Justice Costello provided clear and unequivocal guidance on the position that the Adjudication Officer does have discretion to limit the evidence of a party to litigation if that evidence should first have been put to a witness in cross-examination. Ms Justice Costello held:

… counsel for CTAM objected to the defendants’ subsequent attempts to introduce evidence to rebut that of Mr Luby and I heard the evidence de bene esse. It was submitted that it was a fundamental requirement of fairness that a party must put its case to a witness on cross-examination. CTAM relied upon Browne v. Dunn (1893) 6 I.R. 67 to the effect that if a party fails to put its case to a witness the court has a discretion as to whether to admit the contradictory evidence. In general, however, it will not be admitted unless the witness is recalled and the evidence is put to him or her and the witness is given an opportunity to comment upon it. CTAM urged that the further evidence of the alleged investment by the fifth named defendant in Éire should not be admitted.

The Respondent concludes that it is open to the Adjudicator to prevent the Respondent from eliciting directly contested evidence of fact from examination-in-chief (of the Respondent witness) as a result of the Respondent’s decision not to put matters relating to the factual makeup of the alleged employment to the Complainant during cross-examination. It was submitted that the proper administration of justice requires this Adjudication Officer to follow the dicta of Ms Justice Costello and accede to the Complainant’s respectful request to prevent the Respondent from eliciting directly contested evidence of fact that it chose not to put to the Complainant in cross-examination.

The Submission concludes:

1. In reliance on the foregoing, it is the Complainant’s position that there is a clear and unequivocal obligation on the Respondent to put its case to the Complainant in cross-examination if it wished to elicit directly contradictory viva voce evidence. It simply chose not to abide by that clear and unequivocal obligation. It is submitted that, as a matter of law, this Adjudication Officer does enjoy a discretion in terms of acceding to, or refusing the Complainant’s application. However, it is submitted that to refuse to exercise that discretion in favour of the Complainant would render the within Adjudication unsafe, as a matter of law.
2. In a submission not made lightly, the Complainant respectfully submits that to refuse his application and allow the Respondent continue with its proposed viva voce evidence would render the within Adjudication Process unsafe as a matter of law. The Adjudication would be continuing in a manner contrary to fair procedures and due process, unsafe in terms of the administration of justice, in breach of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, and inter alia, in breach of Article 38.1 of the Constitution.

The Respondent submission dated the 19th of March 2025:

This submission is captured in the Conclusion provided by the Respondent:

1. The Respondent is entitled to adduce such evidence as it may determine in its own defence. This is a requirement of constitutional justice.
2. The Complainant is attempting to prevent the Respondent from so doing by insisting on the strict application of a rule of evidence in relation to the cross-examination of witnesses. The WRC , however, is meant to be a relatively informal forum and it is neither necessary nor required that it rigidly applies the same rules that might apply in the setting of a court.
3. Even if the WRC were so obliged, the rule in Browne v Dunn only becomes relevant where the Respondent intends to argue that a witness such as the Complainant is effectively lying and that their evidence should be disregarded. No such contention has yet been made on the part of the Respondent.
4. Regardless of the above, the fact remains that – at its height and if it were applicable in this instance – the rule in Browne v Dunn merely requires that the Complainant be afforded the opportunity to address certain matters on cross-examination. If there has been any deficiency, same can be remedied by offering the Complainant the opportunity to go back into evidence and be cross-examined on the relevant points. That opportunity has been offered to the Complainant and he has refused to go back into evidence. Having declined that opportunity, he cannot then insist that the Respondent be precluded from giving evidence in its own defence.

Findings:

I have carefully considered the submissions provided and reflected on my own notes of what transpired at hearing. I can appreciate why the Complainant seeks to have his evidence left as is, and assume that those matters which were not formally challenged under cross examination should thereafter be considered as uncontested matters of fact. I understand that a strict application of the rule in Browne v Dunn would bring me to that conclusion. However, I have to consider this outcome against the requirement that I operate within an overall framework of the administration of Justice as directed by the Supreme Court in the  Zalewski Judgement.

I must also have regard to the fact that the prescribed legislation puts an onus on me, as an Adjudicator, to make any and all inquiries which I feel might be helpful in my quest to get to a point where a decision might be made. It is not unusual for me, as Adjudicator, to ask questions of litigants and their witnesses which go well beyond what has been presented on Affirmation or Oath. This is obviously an essential tool when dealing with unrepresented parties who may or may not know what evidence should be presented and how it should be presented. When parties are fully (and legally) represented I do not accept, nor has it been suggested, that my obligation to make independent inquiry should be in any way curtailed. Put simply, if I perceive there to be a gap in the information I want to have, I ask the relevant questions. The WRC is not a forum wherein the adversarial system is exclusively operated, and I note that the case law tends to suggest that the rule in Browne v Dunn is a creature of the Adversarial system.

In this instance, I believe that the Respondent representative was so intent on drilling into certain parts of the relationship between the litigants that he simply overlooked taking issue with other aspects of the relationship – namely the mundane day to day office issues. It is worth noting that the Respondent’s representative has not accepted he made a mistake, though he is of course as aware as any of us that the rule in Browne v Dunn is commonly adhered to in the WRC and it’s application is in the interest of justice and to avoid any “ambushing” tactic. To my mind it is regrettable that the Respondent’s representative did not own his mistake, apologise and seek to move on. I do not know if the Complainant’s representative would have taken a different tactic, but the resulting entrenchment has not exactly been a beneficial state of affairs for either party.

I did not direct that the Complainant be put back into evidence, as I was told that such a direction would be challenged by way of a Judicial Review. I did ask that the Complainant return to his evidence so that the Respondent’s representative might put matters to him, but this request was refused. I was and am surprised at the position taken. It seems to me that litigants and their witnesses are often asked to return to the box to give evidence not already elicited and in circumstances that are exactly the same as the circumstances that pertain herein. I’ve seen this happen in the Courts and I have certainly overseen this happen many times in the WRC. It may not be ideal in terms of sequencing evidence, but I am not sure it impacts quite as dramatically on the administration of justice as the Complainant’s Counsel has set out. Had the Complainant returned to give evidence, certain matters would have been put to him as part of the Respondent’s case. I cannot see how the Complainant would, in such circumstances, have been so severely disadvantaged by having to give further evidence on his day-to-day experiences in the office when the issue first arose. The opportunity was not taken up. That said, we are, as they say where we are.

The Complainant representative has asked that not only do I refrain from directing the Complainant from returning to give evidence but has also, significantly asked that I stop the Respondent witnesses from giving evidence which has not been put to the Complainant through cross-examination. At the hearing we found one line of questioning that had not been put to the Complainant. We do not know what, if any, other issues might crop up which have not been asked of the Complainant in cross examination. The reality is that in presenting their cases parties (and their witnesses) very often give evidence over and above what is anticipated, and which have not been put to witnesses in the ordinary way. It must be remembered this is not a Court of pleading. Advance Statements are not taken as in a criminal hearing, nor yet is there scope for pre-hearing pleadings such as particulars and interrogatories to provide pre-hearing information.

Parties (whether represented or not) present before the WRC to present their case orally on oath or affirmation. It is my function to ensure that the hearing is fair and that no prejudice occurs and that no party is disadvantaged. It is not uncommon that the case that unfolds is markedly different to the one set out in a complaint form. For this reason I am empowered, as an Adjudicator, to make the relevant inquiries as appropriate to ensure the hearings are fair transparent and parties are heard.

Returning to the Complainant’s request above, it occurs to me that even if I did acquiesce to the Complainant’s request, and denied the Respondent any opportunity to challenge the Complainant’s evidence concerning his day to day presence in the Respondent’s office, there would be no ongoing embargo on this tranche of evidence should this case be appealed to the Labour Court. That Court hears all matters de Novo and would not be bound by any direction made at the Adjudication stage.

In any event, I need not overly concern myself with whether this matter winds up in front of the High Court on Judicial Review or in front of the Labour Court on Appeal or before any other venue. My function is to acknowledge that I, as an Adjudicator, am tasked with the administration of Justice and I must ensure that I give both parties an opportunity to be heard and that I conduct the hearing in a fair and judicious manner. I am not, in the circumstances inclined to restrict the Respondent’s case in the manner sought. It is my job to examine every aspect of the employment relationship between the parties. I am not satisfied that a tranche of his evidence is locked in and to be considered factual by reason of an oversight on the part of the Respondent’s representative. To do so would be grossly unfair to the Respondent in defending this case.

I am therefore going to allow the Respondent witness to give evidence that was not put to the Complainant in the first instance.  My preference would be for the Complainant to be put back into evidence to allow the matters which should have been put to him the first-time round, be put to him. Thereafter the Respondent witness would complete his evidence. It is entirely a matter for the Complainant in consultation with his legal team to decide if he wishes to engage with this sequence of events. It is noted that the caselaw cited by the parties did reference this easy way to repair the situation as per Ms Justice Costello:

It was submitted that it was a fundamental requirement of fairness that a party must put its case to a witness on cross-examination. CTAM relied upon Browne v. Dunn (1893) 6 I.R. 67 to the effect that if a party fails to put its case to a witness the court has a discretion as to whether to admit the contradictory evidence. In general, however, it will not be admitted unless the witness is recalled and the evidence is put to him or her and the witness is given an opportunity to comment upon it.

In making this decision I am conscious of the fact that the Complainant might perceive that this is an injustice and inherently unfair. The Complainant must understand that as the Adjudicator, I need and want to hear the complete narrative from both sides. In the circumstances that present before me here, I believe that the blocking off of a tranche of evidence in the manner proposed would be arbitrary and if I needed to, I would simply fill the gap in the evidence through my own inquiries.

Conclusion:

I am allowing the Respondent witness to complete his evidence to include those issues which were not put to the Complainant in evidence.

I am offering the Complainant with an opportunity to re-present for a more detailed cross-examination by the Respondent representative.

I am re-listing this matter for hearing for the next available date.

Thereafter I directed this matter to be brought back before the WRC, and the parties were notified that this matter was listed before the WRC on the 20th of April 2026.

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Dated: 29/06/26  

Workplace Relations Commission Adjudication Officer:  Penelope McGrath

Key Words: