The Workplace Relations Act 2015 came into force on 1st October 2015. Since its enactment, 2,800 cases have been lodged under the new system. Out of these 2,800 cases, 900 have been listed for hearing. This article will explore what this means for employers.
The volume of cases lodged highlights the importance of HR practices in an organisation. It shows that the new system has not acted as a deterrent to lodging claims and employers need to be ready to defend themselves as vigorously as ever.
Previously, claims could be heard in the Labour Relations Commission, the Employment Appeals Tribunal and the Equality Tribunal in the first instance and appealed to the Employment Appeals Tribunal, Labour Court or Circuit Court depending on the case lodged. This led to claimants lodging claims in every forum, regardless of merit, in order to overwhelm the employer and prompt an early, commercial settlement. It allowed claimants to essentially ‘forum shop’ when it came to dismissals and discriminatory dismissals.
The new system requires that all cases are heard in first instance by the Workplace Relations Commission. This includes cases formerly lodged in the Equality Tribunal. These claims, whilst heard in private will have the decisions recorded publicly on the Workplace Relations website. The employer and employee names will not be disclosed. It is hoped, by employer groups, that this will put an end to the inconsistent approach taken by Rights Commissioners in the past.
The Workplace Relations Commission requires the parties to put together a statement of their case within 21 days of receipt of the claim form. While this is not a statutory requirement, it provides an invaluable opportunity for the employer to assess their case for its strengths and weaknesses and it ensures the employer has the time to organise the documentation needed for the hearing in plenty of time to pass it to their legal advisors / HR department. The employer can identify witnesses needed and put them on notice of the hearing. The statement will allow the respondent to clarify any issues the claimant has incorrectly put on the complaint form, such as dismissal date, whether or not the dismissal was in dispute, rate of pay etc. The statement is a great opportunity to raise any preliminary points such as out of time arguments, contractor v employee etc.
In circumstances where the claimant has elected to attend a mediation, an employer who has taken the opportunity to put together their statement, will know if mediation is a process they would like to engage in.
Mediation under the Workplace Relations Acts, differs in this author’s opinion to traditional mediation. The mediators employed by the Workplace Relations Commission can decide to mediate a case over the phone or in person. Mediation usually results in a monetary settlement of the case. The mediated agreement is binding on both parties and can be enforced by the courts. Cases will either be resolved in mediation and an agreement will issue or they will proceed to hearing.
The only person who can withdraw a case, is the claimant, either when an agreement has been reached through mediation or discussion between legal representatives or when a settlement is negotiated. The Director General of the WRC can throw out a case where it has not been pursued by the claimant after a year.
The first instance hearings in the WRC, although still informal, will be run by Adjudication Officers instead of Rights Commissioners. The Adjudication Officers have additional powers which Rights Commissioners never had. They are entitled to subpoena witnesses and documents. Otherwise the hearing will run similarly to a Rights Commissioner hearing. The Adjudication Officers will be required to use a template for their decisions, it will be laid out as follows: Preliminary issues, assessment of facts, agreed faces, disputed facts, legal reasoning and conclusion. It is hoped that this will lead to more reasoned decisions and importantly allow employers to see where they have fallen down and prevent the same issue occurring.
The claimant and the respondent have 42 days from the date of the decision, to appeal to the Labour Court. The timelines in relation to lodging cases and appeals have all been standardised. Previously in order to have time extended to lodge a case, there had to be exceptional circumstances, this has been amended to state “reasonable cause” this is in this authors opinion, an easier burden to prove than exceptional circumstances. The onus is always on the complainant to show these cases existed.
The Labour Court is now the final court of appeal for all decisions made by the Adjudication Officers (the exception being an appeal on point of law to the High Court). The Labour Court will operate as it had before the Act, the notable exceptions being they now hear all the appeals, no matter what the act and a submission is required within 21 days of the appeal being lodged. A further statement can be submitted 7 days in advance of the hearing. Submissions, to the Labour Court should contain a concise statement of the factual background, a summary of the evidence, legal arguments and the witnesses who will be relied upon.
The Labour Court hearing is a de novo hearing. This means the case is heard from the beginning as if the WRC case did not go ahead. These cases are heard in public, however in certain circumstances, applications can be made to have them heard in private. The hearings operate on submission based evidence and oral evidence. Witnesses are required to give evidence on oath. The hearings run in a far more formal manner than the WRC hearing.
The Labour Court has expanded its membership in order to cope with the expected increase in workload. There are now 4 Deputy Chairpersons, 8 Ordinary Members (4 nominated by IBEC and 4 nominated by Congress) in addition to the Chairperson.
Cases before the Labour Court now go through a case management system, this allows the Court to decide how much time needs to be allocated and that any ambiguities that need to be discussed in advance, such as issues of fact and law, are identified.
The issue of fees for lodging a complaint under the employment system has long been debated. The Minister decided in this instance it would not be appropriate to require claimants to pay a fee to lodge a complaint as this could deny someone access to justice. When a party misses their first instance hearing however and wishes to appeal a decision, they will be charged €300.00. There is a possibility the Labour Court may refund the fee if the Court determines that the party’s failure to attend the first instance hearing was for a good cause.
The Labour Court may, while an appeal is before them, direct the Director General to instruct an inspector to inspect an employer’s records. It is possible to adjourn proceedings pending receipt of the report. The Labour Court is obliged to consider this report and furnish a copy to the parties to the appeal.
The Workplace Relations Act 2015, in addition to reforming how cases are heard in the Employment Law Forums, completed the work of the Employment Law Compliance Bill 2008. Part 3 of the Act provides for the restatement and consolidation of the individual legislative provisions under which the inspectors are authorised. It also allowed inspectors to carry out inspections under equality legislation.
The Act provided for two new powers to allow inspectors to achieve compliance with employment and equality legislation; the Compliance Notice (Section 28) and the Fixed Payment Notice (Section 36).
A compliance notice is issued to an employer by an Inspector and is a directive to do or to refrain from doing certain acts. Failure to comply with this notice is an offence and an employer can be pursued through the criminal courts. An employer can appeal a compliance notice to the Labour Court where they believe they are compliant with the legislation in question. The Labour Court will then hold a hearing and hear evidence from the parties in order to establish if a compliance notice should remain in force or be withdrawn.
If an inspector feels they have reasonable grounds to believe an employer has committed an offence, either under section 11 of the Protection of Employment Act 1977, subsection (4) of section 4 of the Payment of Wages Act 1991 or section 23 of the National Minimum Wage Act 2000, they may issue a fixed-payment notice directing the person to pay an amount not exceeding €2,000.
The Workplace Relations Act 2015 has brought in a great many changes and will hopefully mean the Employment Law Forums are easier for all users to navigate. Whether this will be to the benefit of employer’s remains to be seen.
Advantages
End to forum shopping
Decisions easier to follow – more rational behind the findings
Quicker hearing dates less time to accrue losses
Disadvantages
Quicker hearing dates – less time to prepare
Quicker hearing dates – less time to negotiate settlements
Statements required in advance – walk the line between tipping your hand and complying with requirements
If you have any queries in respect of the above article then please contact our 24 Hour Advice Service on 01 855 50 50.
