I attended CPD (continuous professional development) organised by Central Law Training yesterday and Marguerite Bolger SC gave an excellent hour-long presentation on dismissals in the employment law module I attended.
Some nuggets which I took away are
WRC or injunction?
One of the most important decisions for the employment law solicitor when advising a client is to decide whether the best course of action will be to go to the Workplace Relations Commission or to the High Court to seek an injunction. Some cases will be suitable for the WRC, some will not.
On the other hand, some cases will not be amenable to High Court injunction proceedings and the factors to consider will be the employee, employer, the circumstances of the case and whether there is a breach of contract or not. If there is no breach of contract or a constitutional right then seeking an injunction would be inadvisable.
Costs in the High Court
Lawyers are most unlikely to have their costs awarded by the High Court in judicial review proceedings. They are, however, likely to be awarded costs in a statutory appeal application. This may explain, in part at least, why some apparently small in value employment cases end up in the High Court on appeal on a point of law.
Reinstatement or reengagement
Reinstatement or reengagement are options as remedies in unfair dismissal cases. I did not know, however, until yesterday that reinstatement will be from the date of dismissal whereas reengagement will be from a specified date, not the date of dismissal.
This has huge implications for the employer and reinstatement, therefore, is possibly the ‘nuclear button’ from a cost perspective if you are the losing employer.
McKelvey Court of Appeal decision
The McKelvey Court of Appeal decision held that there was no general right to legal representation in a disciplinary procedure in the workplace, and this decision was later upheld by the Supreme Court.
But the Court of Appeal held that there was a right to test the evidence, implying a right to cross examine witnesses, and this was not turned over by the Supreme Court. Thus, McKelvey is authority for the proposition that you have, as an employee, the right to test the evidence against you. You will be arguing you have a right, therefore, to cross examine witnesses against you.
Conclusion
The law evolves and changes rapidly, especially in the area of employment law, as a consequence of decisions of the higher courts in various appeals and challenges to decisions of the Labour Court and Workplace Relations Commission.
If I learned only one thing yesterday it would have been worth my time on a Saturday morning coming up to Christmas. Learning four valuable nuggets of employment law wisdom from a senior counsel who specialises in employment law is a true bonus and will allow me to serve my clients better.