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28 November 2018
In 2004 Mr Rodosthenous started working for Aqua Masters PLC, a local company based in Nicosia, under a contract of employment. The contract stated that his services would be required both in Cyprus and abroad. Subsequently, he also started working for Aqua-Masters Qatar Co WLL, a foreign company based in Qatar.
According to Rodosthenous, immediately after being hired by the Qatari company, he had signed a new contract with Aqua Masters PLC which stated that there would be no wage deductions for the time he had spent in Qatar working for the Qatari company.
However, claiming that the new contract had been signed by an unauthorised person and was therefore invalid, Aqua Masters PLC paid Rodosthenous only for the time that he had worked in Cyprus and deducted any amount from his wages relating to the days he had worked in Qatar and been paid by the Qatari company.
Rodosthenous complained before a Cypriot criminal court that the wage deductions were unlawful and that Aqua Masters PLC was criminally guilty because it had violated Law 35(I) of 2007 on the protection of wages.
Aqua Masters PLC denied the allegations and claimed that, according to Rodosthenous's valid contract of employment, he had been permitted to receive wages only for the days that he had worked in Cyprus for Aqua Masters PLC and not for those spent abroad working for the Qatari company.
The criminal court concluded(1) that Rodosthenous's complaint not only concerned wages, but also additional unclear and unresolved employment issues, including:
Since these issues remained unresolved, the court held that Rodosthenous had not proved Aqua Masters PLC's guilt beyond reasonable doubt.
Furthermore, the court noted that the fact that Law 35(I) of 2007 puts the onus for paying wages on the defendant does not mean that defendant must proof his innocence – this would violate the constitutionally established presumption of innocence. Instead, the plaintiff must prove its case beyond reasonable doubt and, if it manages to do so, wages must be proved on a balance of probabilities.
In its examination of the appeal filed against the above judgment,(2) the Supreme Court agreed with the criminal court's assertion that plaintiffs in criminal cases must prove their case first. However, contrary to the criminal court, the Supreme Court noted that Rodosthenous had no burden to prove Aqua Masters PLC's wage payments; rather, he was responsible for proving only that:
The Supreme Court held that an opposite approach would render Law 37(I) of 2017 void and without meaning. Therefore, the criminal court had erred in its reasoning that Rodosthenous had not proved his case. Both facts regarding the existence of an employment relationship and that an amount had been deducted from Rodosthenous's wages were undisputed and accepted by Aqua Masters PLC. Therefore, Rodosthenous had successfully proven his case – all that remained was for Aqua Masters PLC to prove whether the final wages had been paid.
The Supreme Court also held that the criminal court had erred in not interpreting the contract of employment and its terms – a vital step for reaching a conclusion about Rodosthenous's wages. Thus, the criminal court should have interpreted the contract and determined Rodosthenous's wages accordingly.
Based on the above, the Supreme Court upheld the appeal and remitted the case to a different criminal judge for retrial.
The question as to whether reverse onus in criminal cases threatens the presumption of innocence is not new – Cyprus case law has long established that this reversal does not transfer the burden of proof to defendants; rather, it allows them to create reasonable doubt with respect to their guilt.(3)
The Supreme Court's decision confirms the existing case law and provides guidance on how similar cases ought to be handled. Further, it clarifies that all criminal courts (ie, not just employment tribunals) must examine the facts that establish employment relationships and interpret contracts of employment where said facts are disputed.
For further information on this topic please contact Nicos Panayiotou at George Z Georgiou & Associates LLC by telephone (+357 22 763 340) or email (email@example.com). The George Z Georgiou & Associates LLC website can be accessed at www.gzg.com.cy.
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