Ciaran O’Mara 09.06.2015
-The new single channel system for all statutory employment rights complaints to the Workplace Relations Commission.
-The obscurity and complexity of the new legislation.
-Mediation for all categories of claims.
-The role of the adjudicators and their qualifications and appointment.
-Time limits, extension of time and “reasonable cause” for all.
-Introducing fees for services.
-How adjudication will work and the procedural powers available.
-Parallel claims.
-Transitional arrangements and the abolition of the EAT.
-Appeals to the Labour Court: how will the Labour Court operate the new system?
Introduction
Some four years have elapsed since the Minister for Jobs, Enterprise and Innovation, Richard Bruton announced his intention to revamp the State’s employment rights procedures. The objective was to streamline the process of employment law disputes with one point of entry and one forum and one appeal. The Minister did not lack any confidence and boldly proclaimed his intention to have “a world class” system, no less, of workplace relations.
With the publication of his Workplace Relations Bill in 2014, the Minister recommitted himself in the explanatory memorandum to his ideal:
“A modern, user-friendly, world class employment workplace relations system … resolving disputes as quickly and inexpensively as possible.”
While the new Act falls well short of this objective which has been a source of derision for most employment lawyers, let us be clear that from outside the bubble we, the “insiders”, live, the new Act has been welcomed. That is, insofar as anyone is interested. The general public has no interest in the legislation as evidenced by the desultory and superficial debates on the Bill in the Oireachtas. I took part in possibly the only programme on RTE to consider the Bill some weeks ago and the politicians with me on the panel knew almost nothing about the Bill and had no views, good, bad or indifferent. Their eyes glazed over when I went into specifics. To them, and to the wider public, having a single channel system to deal with employment disputes seems progressive and they are right. It is progressive and correct. It’s just that we could have done much better.
The unified single channel system.
No longer will multiple claims have to go to different forums with different routes of appeal. This is a major advance and will greatly assist users from both sides of the IR divide.
The Equality Tribunal and the Rights Commissioners are being subsumed into the new Workplace Relations Commission (“the WRC”) established by the Act. The Labour Relations Commission and the Employment Appeals Tribunal are both being dissolved. All employment rights disputes and complaints heretofore sent to Rights Commissioners will now go to the WRC and if mediation is not possible will be dealt with by Adjudication Officers. There will be one substantive appeal to the Labour Court and an appeal on a point of law to the High Court.
This appears to be simple and straightforward but it’s not really.
The new Act joins together the procedures for redress for some twenty sets of employment legislation, some eighteen sets of other employment and non-employment legislation, and some thirteen statutory instruments. That’s 51 legislative procedures. At one fell swoop, a massive brief of legislation is now to be overseen and adjudicated upon by the redress system established by the 2015 Act. Virtually every aspect of the legal rights of every employee in this country will henceforth by governed by this system. It is important to understand that the substantive rights of citizens are not being changed, just that the place to dispute them is now unified.
Each individual right of action may not seem so vital or serious but when you add the totality of the legislation together then you realise how profound the effect of the new legislation will be. There is no other area or sector of life where we have decided to give the every-day affairs of the individual to a non-courts based system. This is unprecedented.
We know that the Oireachtas is allowed by Article 37 to give limited judicial functions to tribunals outside the courts established under our Constitution. Does the 2015 Act provide for a “limited” tribunal in accordance with our Constitution?
There is a paucity of case law on this topic but I have to wonder. Say, for example, that legislation was proposed to remove family law from our courts system and give it to a new Family Relations Commission, could this be challenged? I hazard that it could and the Supreme Court would not be happy about it. I have no principled objection to the Workplace Relations Act but I am surprised that nobody has ever addressed the compatibility of the new regime with our constitutional structures.
The obscurity of employment law
Perhaps the most obvious criticism of Irish employment law, certainly the one you hear all the time, is the mind numbing complexity of the system for readers of the legislation. Forty something statutes, loads of statutory instruments and multiple whistleblower regimes all criss-crossing each other are now to be joined together with a new sticking plaster in the form of the Workplace Relations Act, 2015.
The 2015 Act amends virtually every existing piece of legislation in this field. It is virtually unreadable. Its 86 sections are only half the Act. The various schedules go on to change all the legislation affected. An ordinary worker trying to figure out how the law affects his or her potential dispute with his employer would have to undertake a huge exercise in downloading many pieces of law and attempt to piece together how they interact in order to establish what their legal position may be. To be facetious, you might say “have an employment problem? you need a lawyer.”
Saying the law is labyrinthine is to fail to describe the complexity of the legislation. I will digress for a moment.
Britain’s more senior Law Lord, Lord Bingham, wrote a bestseller on “The Rule of Law” some years ago. In this book he examined what exactly the phrase “The Rule of Law” meant today. He deduced some eight key principles that together made up the rule of law. One of them he summarises as:
“The law must be accessible and so far as possible intelligible, clear and predictable.”
I suggest that this is definitely not the case in relation to the Workplace Relations Act, 2015. It undermines any notion of our system being “world-class”.
Mediation
The 2015 Act provides, in section 39, for the Director General of the new WRC to refer any complaint or dispute to mediation. This is not a compulsory process and either party can object and proceed to adjudication. These provisions build on the existing scheme of mediation used in equality cases and I think nobody will object to this becoming a universal way to approach all employment disputes and it is in accordance with the EU Mediation Directive and similar developments in our courts system. The mediation officer holds a mediation conference and there are protections to ensure the confidentiality of the system.
A portion, possibly a large portion of smaller cases, should be well capable of resolution by mediation. This is a positive development.
The adjudication officer
At first instance, all complaints not resolved by mediation will be heard from now on by adjudication officers. These individuals will be at the heart of the new system and replace the Rights Commissioners, the EAT and the Equality Tribunal.
Their efficacy and quality will determine the success of the new structures.
Section 40 deals with the AOs. It sets out how they are appointed, their tenure and how they may be removed. It is the Minister for Jobs, Enterprise and Innovation who appoints the AOs from the members of the staff of the WRC and any other persons as he considers appropriate, the latter group being subject to a competitive process. The Rights Commissioners and Equality Officers at the time of the commencement of the Act will continue as AOs.
It is already known that a small number of EAT chairs will become AOs. Some adjudication officers are also in line to be appointed following a recruitment process once the Act commences and they appear to be quite distinguished and of a very high calibre.
It is good to see the de-politicisation of these appointments. One of the factors that damaged the EAT was the mushrooming of the number of vice Chairs appointed in the early 2000s as a result of political patronage. Backbench TDs lobbied the Minister of the day to get young barristers appointed to “give them a start in their careers” irrespective of their experience or expertise in the subject. If I remember correctly, the number of EAT vice chairs went from 12 or so to 49 in the space of a few years. Some vice chairs hardly ever sat and therefore did not build up a body of experience. Some appointments were of course excellent but they were not all so.
It is disappointing that AOs are not required by the Act to have any particular expertise in employment law. At a time when most IR/HR practitioners from both sides as well as employment lawyers have taken the trouble and effort to have professional qualifications either as lawyers or as employment law specialists, is it too much to expect that an Adjudication Officer would be formally required to have at least minimal comparable qualifications?
As for tenure in office, the Adjudication Officers who are members of the staff of the WRC cease to be AOs when they cease to be staff. The outsider AOs may be on fixed terms. In any event, the Minister under subsection (7) may revoke an appointment of an AO.
While s 40(8) provides that an AO shall be independent in the performance of his or her duties, one does not draw much comfort from the fairly weak tenure provisions of section 40.
This goes to the heart of the status of an AO. It is clear that they are going to carry out judicial or quasi-judicial functions on a whole host of issues, making findings and issuing decisions of legally binding effect. For their holding of office to be so dependent on a member of the executive branch of government does not sit well with our constitutional provisions and tradition. The notion of security of tenure for judicial figures has existed since the Act of Settlement of 1701. It has been reinforced by the Irish Constitution of 1937 and given further support by Article 6 of the European Convention on Human Rights of 1950 which requires a “fair and impartial trial”. The EU’s own Charter of Fundamental Rights repeats this and it is, of course, highly relevant as the AOs will be giving effect to much EU law derived legislation. The case law from Strasbourg would indicate that fixed terms of appointment for quasi-judicial figures is not acceptable. Section 40 is undoubtedly a weakness in the new structure regarding the question of tenure.
It is worth quoting some of Article 6 because it will feature again in this paper:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
Before leaving the Adjudication Officers, it is worth recalling that the AOs and indeed the Labour Court are national courts for the purposes of EU law.
In Impact v Minister for Agriculture Case C-268/06, the ECJ rejected the Irish Government’s argument that Rights Commissioners and the Labour Court were not national courts and could not refer questions of EU law to it. It found that “Community law, in particular the principle of effectiveness, requires that a specialised court which is called upon, under the, albeit optional, jurisdiction conferred on it ….. to hear and determine a claim based on an infringement of that legislation, must also have jurisdiction to hear and determine an applicant’s claims arising directly from the directive itself in respect of the period between the deadline for transposing the directive and the date on which the transposing legislation entered into force if it is established that the obligation on that applicant to bring, at the same time, a separate claim based directly on the directive before an ordinary court would involve procedural disadvantages liable to render excessively difficult the exercise of the rights conferred on him by Community law. It is for the national court to undertake the necessary checks in that regard.“
Adjudication Officers are going to be very important people. If you compare them to District and Circuit Court judges exercising civil jurisdiction where there is a recently increased limit of €75,000 in maximum awards at Circuit Court level, then the familiar two years’ gross pay maximum in employment cases even applied to a worker on the average industrial wage brings you right to the limit of the Circuit Court’s powers. AOs will also be able to make all kinds of mandatory orders, such as reinstatement of a dismissed employee, ordering a company to consult with workers’ representatives in a collective redundancy, or directing a discriminatory practice to end,all these roughly comparable to the equitable jurisdiction of the Circuit or even the High Court. This is not new. All these powers currently exist, but putting them together in one decision maker will suddenly highlight that an Adjudication Officer is not to be trifled with.
The adjudication process
At the very centre of the 2015 Act, is the presentation of a complaint to the WRC and referral, under section 41, to the adjudication officer.
If you have to read only one section of the Act, this is most important one in my opinion. It is much improved on the draft section contained in the Bill published last summer and at least some of the criticism voiced by practitioners has been taken on board. The odious provision obliging all parties to make a special preliminary application to be allowed have representation at the hearing has been dropped. You would wonder how it could ever have been proposed.
By subsection (13) the proceedings before an AO must be held in private. Unfair dismissal and payment of wages hearings which have always been held in public must now be conducted in private.
So, to take a recent example, Sean Quinn junior’s recent successful case at the EAT, reported in the national media at the recent holiday weekend, where the liquidators of IBRC were found to have conducted a sham redundancy leading to an award of some €95,000 in favour of Mr Quinn by the EAT will never by published in the future unless the case ends up in the Labour Court on appeal.
I have no view on the rights and wrongs of the dispute between Mr Quinn and IBRC but I strongly believe that it has been in the public interest over the last four decades that some dirty laundry in the world of work and business gets to be washed in public. Public scrutiny of alleged misconduct can only be a deterrent. This is why I thought we legislated for whistle blowers in the Protected Disclosures Act 2014.
It seems a paradox that we appear to have learned lessons from the economic crash and reformed our democracy to allow for more openness and transparency, while at the same time we close down public access to adjudication hearings. I am thinking about the restoration of the original FOI legislation, registration of lobbyists, and mandatory reporting of white collar crime, and other reforms brought in by the present Government. Recently the family courts have been opened to the media in a controlled and restricted fashion. Professional fitness to practice hearings are now in public. Why are we going the other way in employment law? Bringing in blanket private hearings by Adjudication Officers seems counter intuitive to me.
I fundamentally object to this change as I believe that the administration of justice should always be in public save for cases where there is an element of personal privacy required such as sexual harassment. The provision flies in the face not just of our own legal and constitutional traditions but also to the guarantees of the European Convention on Human Rights and the EU Charter of Fundamental Rights, as mentioned above.
Private hearings also seem to me to go against the trend of openness and transparency which society expects today. The saving grace is the opening of the Labour Court to employment rights disputes being held in public.
Subsection (14) requires the WRC to publish every decision of an AO on the internet but it cannot identify the parties and it may redact the decision. This is mandatory requirement whereas it was only a power for the AO in the original Bill.
The old LRC has had to maintain a statutory public register of decisions since the 1990s. This was a little known provision and I have never heard of anyone actually checking on it. The sum effect of all these restrictions will diminish the value of any case law generated by the AOs. It will be hard to discern patterns in decision making and will make the law a little less certain.
I turn now to the central provision of section 41 which is the actual power of the Adjudication Officer (AO) to conduct and run a hearing. This is closely modelled on the existing standard provisions used by Rights Commissioners.
Subsection (4) requires the AO to inquire into the complaint or dispute. Secondly, the AO must give the parties an opportunity to be heard by the AO and to present any relevant evidence. Then the AO must make a decision and that decision must be in accordance with the relevant redress provision of the legislation under which the complaint is being made. Finally the AO must give a copy of the decision in writing to the parties.
This provision has worked reasonably well over the years for Rights Commissioners (RCs) and is straightforward. Obviously, the rules of natural justice and the constitutional right to fair procedures need to be observed and safeguarded. Up to now, depending on the RC you have in a case, most hearings will meet expectations for cross-examination and the production of evidence from both sides. Many parties will bring along submissions, factual and legal, which are accepted by the RCs. This is all well and good and helps in many of the typically smaller holiday pay or wage deduction claims run by RCs. Whether this is suitable or sufficient for equality cases or dismissal cases is another issue.
If there has been one advance in the provisions of this section since the Bill was published, it has been the insertion of subsections (10), (11) and (12) into section 41 of the Act. We have gone from a position where the AO had virtually no powers and was going to be an almost passive listener to the evidence presented, to the far superior position whereby the AO is going to have full powers a la the High Court to summon witnesses and procure documents in a case before the AO. This is quite transformative and while maintaining the status quo in unfair dismissal and redundancy cases, will mean that there are major procedural tools for AOs in other disputes which RCs never had in the past.
The Equality Tribunal has enjoyed some very strong powers in sections 94 and 95 of the Employment Equality Act, 1998, to obtain information, inspect premises, summon witnesses etc on pain of criminal sanction for breach. These powers will continue to exist, as far as I can see, when an AO hears an equality claim and so they should.
Subsection (17) of section 41 was also inserted during the passage of the Bill and it has enormous potential.
This provides that the Minister may, by regulations, make provision in relation to any matter relating to the presentation of a complaint, referral of a dispute or conduct of proceedings under section 41 before an AO that he considers appropriate. We don’t know exactly is proposed here but all the speculation is that the Minister is going to give proper modern tools of procedure to the WRC and to AOs to efficiently run hearings.
The original Bill in section 41 seemed to me be predicated on an Ireland that existed in the 1960s when the EAT and the Rights Commissioners were set up. This was an Ireland where few workers went to secondary school and a chunk of the population were, at best, semi-literate. Nobody had email and only female secretaries were able to type. The existing procedures at the EAT, ET and RCs were based on parties turning up and making oral presentations, with the RCs and the EAT unaware of the case being made by either side until the hearing has actually commenced. Experienced practitioners, including myself,had the habit of trying to “game” the system. Never say more than “dismissed without substantial reason and in breach of procedures” on a claim if you act for the employee. Never say more than “dismissed fairly and in accordance with procedure” if you act for the employer. Keep your cards to yourself. This was wrong but it suited my client’s interests and I was prepared tol do it as long as the system allowed it.
Ireland is a different place in 2015. The educational level of the average employee has soared over the level of their grandparents. Most of the population is familiar with email and can type even in a rudimentary way. It begs the question: why should the pace and quality of employment litigation be dictated by the slowest and most illiterate unrepresented party? Where either side has no assistance or advice, whether trade union or legal, and has no understanding of the process then I accept the AO needs a discretion to relax procedural requirements to ensure justice is done.But that should not be the default position.
I would like to see the parties required to set out, in advance of the hearing, witness statements encapsulating the main evidence to be given and to set out where there are legal issues arising to require them to exchange positions in advance of the hearing.
If a party fails or refuses to supply an account of their evidence then the AO should have the power to disregard that evidence unless there is a compelling reason why it could not be given. Let’s give the AO power to manage the case properly. Make hearing time meaningful and productive time. Let’s end the practice of parties changing their case on the day.
If I have a claim for €1,000 or €10,000 in deducted wages or a claim for unfair dismissal or whatever, I should be required to set out the basis of my case and the evidence for it before I get to the hearing. If I am an employer and I have a procedural or legal objection, I should be required to inform the employee before the day of the hearing and not produce a rabbit out of a hat. The trend across the whole legal system is for greater pre-trial preparation and exchange of information. This avoids costs and encourages settlement.
In the absence of a real and effective procedure for orders for wasted costs, there is an overwhelming argument to give AOS proper powers to control their procedures.
A good presentation of all the evidence to the AO will tend to better decisions and it will also mean that the Labour Court will on appeals be starting with all of the ground work done for it.
If our expectations are met and good rules are made for AOs, this would lead to greater efficiency and faster turnover of cases which would be in everyone’s interest.
Reasoned decisions
An important Supreme Court judgment in 2012 has unequivocally stated that a decision maker is obliged to give reasons (Mallak v Minister for Justice, Equality and Law Reform IESC 59
The rationale for a duty to give reasons was cogently put by Fennelly J in Mallak where he stated that “several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them”. As a result of this judgment, all bodies subject to judicial review as well as inferior courts are required to provide reasons basing their decision(s), save where obvious, rather than simply rejecting or accepting a position.
This is important in the employment law context as the EAT was heavily criticised for failing to give reasons for its decisions in many cases in the 2000s. The situation is much improved in recent years. AO decisions will have to be reasoned.
Time limits and extension of time
One of the most positive elements of the new Act is to reconcile and harmonize the numerous time limit provisions in the old procedures.
Section 41 (6) generally provides for the usual six month time limit to make a complaint and subsection (8) goes on to replace the grounds for extension of time with one ground of “reasonable cause.”
The ground for extension of time in unfair dismissal cases of “exceptional circumstances” is therefore abolished and with it the extensive and confusing case law built up over decades by the EAT.
Charging fees for services
The most sinister aspect of the 2015 Act is the power given to the Minister by section 71 to introduce charges for services provided by the WRC and the Labour Court. We don’t know if and when this will happen.
The tradition in Ireland has been that state institutions do not charge fees to users of industrial relations and employment law procedures, partly because it has been public policy to encourage employers and employees to settle their differences through the state provided machinery rather than through industrial action and struggle. There has also been a benevolent view that workers unfortunate enough to be at the loss of a job or to have suffered an infringement of their rights should not have obstacles placed in their way when asserting their right to redress.
Nobody can object to a modest user fee to file a complaint or to reply to one. A small fee may help deter vexatious claims also. But the experience in the UK of fees is frightening. A claimant there who goes all the way through the system may incur fees running up to the region of £2,000 sterling by the time they have a tribunal hearing. Small wonder that the number of cases taken in the UK fell by 81% in one year when the Coalition government brought in an increase in fees in 2013. Employment law is becoming practically impossible to use for the majority of workers in Britain.
It is surprising that the Irish trade unions seem to have accepted the fee charging power. Perhaps they got some assurances.
Appeals to the Labour Court
On the provisions of the Act dealing with the Labour Court, I would be broadly content with what is proposed provided that the procedures before AOs are improved in line with my suggestions earlier.
The Labour Court will now hear all employment rights disputes in public which is a major advance and probably designed to stave off difficulties over the AO hearings being in private.
If AO hearings are run as efficiently as I think they will be then I foresee the Labour Court receiving a very full file and needing to run only short hearings to determine appeals.
Transition to the new system
Part 6 of the Act provides for the dissolution of the EAT. The EAT will continue to function after the establishment of the WRC for some time in order to dispose of all legacy first instance claims and appeals referred to it prior to the establishment date of the WRC. This is a departure from the plan envisaged by the Minister in 2011 and later. The reason for the parallel running of the old institution and the new is to be found in the explanatory memorandum to the Bill when published last year:
“The decision to extend the period of operation of the EAT beyond the establishment of the new framework is predicated on the assumption that complainants and respondents in matters referred to the EAT prior to the establishment of the WRC would have a legitimate expectation of having the case disposed of before a tripartite tribunal, sitting in public and operating with the degree of procedural formality currently applied by the EAT. It is conceivable that any such parties who were compelled involuntarily to have their cases dealt with by a single adjudicator applying less formal procedural rules and sitting in private would have stateable grounds for judicial review. This is likely to be particularly applicable in the case of complainants under the Unfair Dismissals Acts who chose to initiate their complaints before the EAT (rather than the rights commissioner) and respondents who had exercised their prerogative to object to a rights commissioner hearing the complaints at first instance.”
This appears to me to be an acknowledgement that the new AO system is for unfair dismissal cases inferior to the existing system to the extent that the Department is going to preserve the old system to ward off claims for judicial review. I think this position has diminished in view of the improved provisions for adjudication in the final text of the Act.
I would guess that we will have the EAT right through 2016 and maybe beyond in view of the backlog of cases.
Parallel claims
Time allows me to consider just one more aspect of the new legislation. This is the ongoing difficulties over parallel claims. The problems with Irish employment law aren’t just to do with multiple claim forms being lodged. There is also a major issue to address regarding the overlap of substantive causes of action.
Section 101 of the Employment Equality Acts relates to ‘alternative avenues of redress and limits the possibility of complainants making multiple claims covering the same circumstances.
The very important decision of Hedigan J. in Cunningham v. Intel [2013] IEHC 207 should be considered in relation to s.101(2), and makes clear that the plaintiff must elect to proceed either with the Equality Tribunal proceedings or the High Court proceedings, but cannot pursue both.
In Cunningham, the plaintiff instituted a claim for discrimination against the defendant in relation to access to employment, promotion and re-grading, conditions of employment, and harassment. The Equality Tribunal rejected the complaint, and an appeal to the Labour Court was pending at the time of the application before Hedigan J. It was claimed that the same events caused the alleged personal injury and the defendant objected to having to defend the same claim in two sets of proceedings. Hedigan J. stated that all matters and issues arising from the same set of facts or circumstances must be litigated in the one set of proceedings save for special circumstances. It was held that –
“…it is clear from her own pleadings and submissions in the two sets of proceedings that both her employment claim and her personal injury claim arise out of the same matters, i.e. alleged mistreatment in the working environment. This she alleges commenced on the announcement of her pregnancy, continued through her commencement of maternity leave, through that leave and culminated in her dissatisfaction with the way she was treated on her return to work. The plaintiff in issuing these personal injury proceedings after her employment equality complaints, in my view, drew an artificial distinction which does not stand up to analysis.
In terms of the reliefs sought, the claim in the personal injury proceedings is for compensation for the stress and the health problems arising therefrom. It is clear that such a remedy may be awarded by the Labour Court in the employment equality proceedings…
…Thus the plaintiff is not precluded from recovering compensation in the Labour Court in respect of the personal injury she alleges she has suffered. Moreover, the defendant herein has stated unequivocally in open court in this application that they will not oppose the plaintiff bringing into her claim before the Labour Court her complaints dating from her announcement of her pregnancy.”
The new version of section 101 amended by the WRA, 2015, inserts new provisions which require a complainant to chose between unfair dismissal and employment equality and allows the WRC to rule out the equality claim unless the UD claim is withdrawn first.
I should say also that the jurisdiction to bring gender equality claims to the Circuit Court is being maintained in the Bill presumably for EU law reasons. I can’t understand how this jurisdiction is limited to gender and continues to exclude other outlawed grounds of discrimination such as disability. If the jurisdiction is required for gender then it must follow that it should be required for the other grounds too.
