1 October 2015 marked the commencement of the most important reform to employment dispute resolution procedures in Ireland with the introduction of the new workplace relations system under the Workplace Relations Act 2015 (the “2015 Act”). As the new system is now in operation for just over ten weeks, it is an opportune time to consider the principal lessons learned since its introduction.
Under the new system, all claims submitted on or after 1 October 2015 are now heard at first instance by an Adjudication Officer of the Workplace Relations Commission (“WRC”). Appeals of decisions of the Adjudication Officer will be heard by a reconfigured Labour Court.
Procedures setting out the practices of the WRC and the requirements on the parties to a dispute at first instance (the “Procedures”) were published in October 2015. The Labour Court also recently published rules relating to the processes to be followed in appeals against a decision of an Adjudication Officer (the “Labour Court Rules”), which include timelines for furnishing written submissions in advance of the hearing.
Reduction in waiting periods
Under the old system, claims to the Employment Appeals Tribunal (EAT) often took over 72 weeks to be listed for hearing. In our experience, cases are now being set down for hearing before an Adjudication Officer within approximately 6 - 12 weeks from the date the case is referred to the Adjudication Officer, which marks a substantial improvement and delivers on one of the Minister’s main objectives of radically reducing the waiting time for hearings.
Preliminary issues
Preliminary issues, such as whether the claim has been brought within the appropriate time limit, may now be raised by way of a written statement to the WRC within 21 days of the date on which the complaint form is sent to the respondent, rather than at the actual hearing of the complaint, as was the practice under the old system. Accordingly, such issues are now being dealt with more efficiently and respondents are spared the cost of preparing a defence to the substantive claim unnecessarily. Under the Labour Court Rules, the Labour Court has a broad discretion, on appeal, to give a preliminary ruling on any aspect of a case referred to it where it is satisfied that time and expense may be saved by doing so. As the first appeals under the new Labour Court only started in the last two weeks (which are primarily dealing with appeals of Rights Commissioner decisions issued pre- 1 October), we have not seen the Labour Court exercise this discretion yet.
Furnishing of information
All relevant information must be sent to the WRC prior to the hearing. In employment equality cases and constructive dismissal cases, the Procedures now require a complainant to give as much detail as possible at the time of lodging the complaint form, including the facts, the link between the ground(s) cited and the alleged discrimination, and, where appropriate, any legal points the complainant may wish to make. Many complainants appear to be engaging legal representation to assist with completing such complaint forms, as discrimination claims, in particular, can be technical. While the Procedures state that a failure on the part of the complainant to give such a statement may give rise to the dismissal of the claim by the WRC for non-pursuit, we have not yet seen a case being dismissed for this reason in practice. In any event, the power of the WRC to dismiss a complaint in such undefined circumstances is likely to be problematic, especially given that this power is not provided for in the 2015 Act.
In all other unfair dismissal cases, the respondent must furnish a statement (by email, where possible) of the facts and its defence within 21 days of the request of the WRC (extendable in “exceptional circumstances” only), including any legal points the respondent may wish to make. Contrary to the practice frequently adopted under the old system, the Procedures state that a mere statement denying the claim will not suffice and could impact on the defence of the matter. It is not clear, however, to what extent this is enforceable by the WRC in the absence of a statutory requirement to produce a statement of defence, and we have not yet seen any decisions addressing this.
Adjournments
Under the Procedures, all requests for adjournments must be made in writing as soon as possible to the WRC, giving details of the reason for the request together with all relevant documentation. In practice, Adjudication Officers have stated that such requests should be received in writing at least one week before the hearing date. In respect of equality claims (specifically, and for no obvious reasons), our experience to date is that before an Adjudication Officer, there is no longer an opportunity to withdraw a claim with liberty to re-enter pending settlement, which is how matters were usually addressed to protect employees where terms are agreed. It now appears that the only means of facilitating a settlement is to adjourn the hearing for a defined period of time in order to allow a settlement to be reached between the parties. In practice, it may mean basically the same result.
Evidence: Witnesses
Each party will be asked in advance to provide a list of persons they propose to bring as witnesses and, even more significantly, the purpose of a particular witness. However, in practice we have seen some differences in how the WRC approach this. In an equality claim we appeared in, the notification of hearing from the Adjudication Officer applied this requirement strictly. In a separate TUPE claim, no such request was received. It has also been our experience that parties are not prevented from calling another witness, even if the witness was not named in advance. On appeal, the Labour Court Rules impose a further obligation on the respondent to provide to the Labour Court not only the details of witnesses, but also a summary of their expected evidence, no later than seven days before the hearing. This will require advanced preparation for that at an earlier stage than before.
Appeals
The Labour Court is still only dealing with appeals referred post- 1 October of Rights Commissioner decisions issued pre- 1 October; no appeal of any Adjudication Officer’s decision has been heard yet. Appeals from the Labour Court to the High Court are now on a point of law only. Prior case law concerning High Court appeals on points of law under the fixed-term workers legislation indicates that legal arguments not presented before the Labour Court cannot be advanced on appeal to the High Court. It remains to be seen whether practice will be followed. Employers are therefore advised to specifically and formally object to any errors in law arising during the hearing so there can be no argument that one is accepting them. In addition, as there is no administrative support in place in a hearing before an Adjudication Officer, a record must be kept by both parties involved, in particular to record the legal arguments, which may subsequently be relied upon in an appeal.
Conclusion
The WRC Procedures and the Labour Court Rules provide some guidance to employers and employees in dealing with disputes at first instance and on appeal, and the practices to date also give us some insight into how the new system will operate. However, it is still too early to identify any discernible trends. Although the Procedures state that a failure by either party to adhere to them may have implications for the processing or defence of a complaint, this is unlikely to be enforceable given that the Procedures do not yet have statutory effect. We will continue to review and provide updates as the new system progress.
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