The Cost Effectiveness of Bringing Certain WRC Claims

Labour Court Appeals

I took a quick look through the latest decisions from the WRC this morning. There is a facility on the WorkplaceRelations.ie website which allows you to see the latest decisions and the week in question is from the 23rd September 2019 to 29th September 2019.

I only glanced at about 5 decisions but of those 5 two grabbed my attention.

Claim for €70

The first one was ADJ-00021926 which was a claim by a maintenance operative against a property maintenance company. This involved a claim under the Industrial Relations act 1969 for outstanding expenses of €70 due to the worker.

The employer did not attend the hearing and the WRC recommended that the employee be paid the €70 and a further €350 for the inconvenience of having to claim to the WRC.

The problem for the employee, however, is that as his claim was brought under the Industrial Relations Act 1969 the recommendation is not legally binding or enforceable.

The second case that took my attention was a claim for redundancy by a kitchen fitter against a kitchen provider (ADJ-00016292). The employee was successful in the case which was held over 2 days and was awarded €619.

Cost effectiveness

What struck me from both of these cases was the question of cost effectiveness for all parties: the employee, the employer, and the WRC.

In the first case involving the property maintenance company the claim at the outset was for €70 and it was brought under an act that can only result in an unenforceable recommendation; this may or may not be why the respondent did not show up.

The second case ended up, after 2 days, with an award of €619 but when you consider the cost incurred by employee, employer, and WRC over a 2 day hearing you would have to question the cost effectiveness of claims like these.

Perhaps if a claim was below a certain amount it could be dealt with without the need for a hearing; perhaps written submissions by both parties (they are supposed to send these into the WRC in any event) and a desk based decision by the Adjudicator.

I am not questioning the right of any complainant to submit a claim, regardless of the monetary value, and recognise that an employee may wish to bring a claim on a point of principle and to show that he/she was treated unfairly and/or unlawfully by the employer.

But a more cost effective method might be worth considering for claims below a certain monetary value which might be to the benefit of all parties.

Is the WRC (Workplace Relations Commission) Biased Towards Employers?

Many visitors to my Facebook page about employment rights in Ireland have a dim view of the WRC (Workplace Relations Commission). Some of these disappointed complainants believe the WRC is useless and in favour of employers.

On this post, for example, you will see comments such as

‘WRC is crap of employers’ weapons’, 

‘A complete shower of pricks…

Told me i was off my head go home.’

‘The wrc weren’t much use to tesco staff.’

‘Biggest mistake anyone can make is to go to WRC – look up decisions and you will see patterns’

‘Kangaroo court at best’

‘The WRC are wortless’

‘They weren’t much use to me either absolutely wasted my time’

Is that the case? Can you, as an employee complainant, get a fair hearing and have a reasonable chance of success? Are the dice loaded against you?

Conspiracy theories can be hard to dispel and unsuccessful claimants to the WRC are understandably disappointed. They blame the system, or the WRC, or the government, or the employer, or the other side’s representative.

They often overlook their own case, however, and the way it was presented. And the facts underlying that case and whether they proved those facts.

Then there is the requirement to prove a breach of the law in respect of the claimant’s employment rights.

Sometimes, but rarely, cases are straightforward. Slam dunks.But they are rare enough, to be frank.

Most times, however, there is at least three sides to the story-the claimant’s, the employer’s, and the truth.

What these disappointed commenters fail to understand is their case was probably unsuccessful because the facts of their case meant they were unable to prove a breach of the law by their employer.

Their case did not fail because the WRC favours employers, it didn’t fail because of some conspiracy, it didn’t fail because the WRC is biased; it almost certainly failed because the complainant failed to

  1. Prove the facts
  2. Prove the law 

Essentially the facts of the case, or the facts that were proved, did not support the contention that the claim they were pursuing was proven.

It is the easiest thing in the world to blame the referee if you lose a match. It is human nature to believe the referee stitched you up and favoured the other team.

It is far more difficult to accept that you were not good enough on the day and the other team were deserving winners.

Similarly, it is easier to blame the WRC generally or the Adjudication Officer or some other target for the failure to prove the claim presented.

But that is not fair on the WRC or the Adjudication Officer who I have always found to be fair, professional, and knowledgeable about employment law.

Last week I wrote about a sexual harassment case at the WRC which attracted an award of €30,000-18 months salary- to the employee and a case of indirect harassment which saw an award of 12 months salary-€38,000- for the employee who lost her job because she was unable to accept moving from part time work to full time.

Conclusion

The truth of the matter about the WRC’s effectiveness for employees is inconvenient and less sensational than the allegation that there is a conspiracy to do down the employee and make sure her claim for breach of her employment right fails. 

The truth is if you present a decent case of breach of the law and prove the facts of your case you will win. And if you fail to do so your claim will fail.

This is the way it should be. You must prove the facts, and you must prove breach of an employment right. 

It’s as simple as that. 

And if you fail, don’t blame the ref. But my experience is that you will get a fair hearing. 

Here are the 2 recent cases to which I refer above and where employees were awarded €30,000 and €38,000:

  1. Indirect discrimination
  2. Sexual harassment

Obsessions With Workplace Unfairness and Injustice-the Frustrations for Advisor and Employee

One of the saddest, most frustrating situations I encounter on a frequent basis has to do with obsession. I regularly meet employees who have what appears to be an obsession with a perceived injustice in the workplace.

The sense of grievance, the sense of being wronged and the injustice felt as a consequence can be all consuming and prevent the employee from getting over the issue, putting it in context, putting it behind them and moving on.

I must tell them that life is not fair sometimes, that the goalposts move, the rules change, and there are no guarantees.

But I simply cannot get through to them. They simply won’t accept this and cannot get over it.

And I accept that now, I accept that in many cases this obsession is bordering on mental illness and health.

I am certain that there is a medical term for what I am trying to describe.

This medical term might have a fancy name, might sound very serious but the fundamental fact is this: the obsession with a relatively minor matter in the overall context of a life or a career is unhealthy and exceedingly difficult to deal with.

Difficult for the employee and difficult for me as an employment law advisor trying to help with an employment problem.

I have little knowledge of psychiatric conditions or the best treatments for the various illnesses that overbear a person’s mind from time to time.

But I do know that a relentless, all consuming preoccupation with a ‘wrong’ that the employee has suffered is unhealthy and harmful.

So, what type of things am I referring to?

Let me give you a couple of examples.

An employee who is dismissed is understandably shocked taken aback.

Losing your job can have tremendously serious consequences such as loss of income, inability to pay a mortgage, inability to provide for one’s family, loss of status, loss of self esteem, and so forth. This is a significant life event that can leave long term psychological and emotional scarring.

I recognise and understand this.

This is not what I am talking about.

What I am referring to is the employee who has been correctly subjected to a disciplinary procedure and has received some sanction but simply cannot accept it. He becomes obsessive about the verbal or written warning placed on his file, but which almost certainly disappear off after 6 months and will not rest until it is removed and he gets an apology.

Or the girl who goes for a promotion in her workplace but is unsuccessful and a colleague and rival is appointed to the position instead. The colleague may have a perfectly valid claim to the position but my client cannot see this. She can only see the long hard hours she has put into her career and education, the late nights and overtime, the extra courses and qualifications.

And she simply cannot accept that on the day of the interview the colleague may have just done a better interview or clicked with the particular make up of the interview panel on that particular day.

I could give you countless examples of what most of us would see as relatively minor setbacks, and nothing more.

And yet the employee is looking to go to the WRC, to the Labour Court, to the Civil Courts, to Europe if necessary, to right the wrong.

Sometimes you just must accept that life isn’t fair, ‘stuff’ happens, and how you respond to setbacks and inequalities is entirely a choice you can make.

Conclusion

This is not a trivial matter and is one I encounter on a weekly basis. If you have a loved one who appears to suffer from this problem you need to know it is not unique.

Courts Will Not Intervene When WRC Can Handle Employment Dispute

The Court of Appeal will not interfere in an employment dispute when there is a statutory regime in place to deal with the row.

This was confirmed again recently in a case involving a solicitor who asked the High Court and the Court of Appeal to intervene in his problem concerning his proposed redundancy.

Background

The solicitor, Mr Kearney, was employed by Byrne Wallace solicitors since 2006. Mr Kearney was made redundant in August 2017 and was given his contractual notice period. He disputed this redundancy on a number of grounds including:

  1. The claim that it was not a genuine redundancy
  2. The claim that fair procedures were not followed in carrying out the redundancy

The High Court refused Mr Kearney’s application for an injunction restraining his dismissal and made an important distinction which is worth noting. The High Court found that where the employee is given their contractual entitlements there is no role for the High court to intervene because there was no breach of contract.

Sham redundancy?

The sham redundancy argument is a separate one and one which the High Court found must be brought under Unfair Dismissals legislation before the Workplace Relations Commission in the first instance.

Mr Kearney also argued that there was an implied term in respect of fair procedures in his contract and on this basis there was a breach of contract, which would allow the High Court to intervene. The High Court accepted the argument from Byrne Wallace that there was no specific term of his contract breached and therefore could not get involved, holding that the correct venue for Mr Kearney was the Workplace Relations Commission.

Mr Kearney appealed the case to the Court of appeal and argued that the Courts should not restrict themselves to cases where there was a breach of an express term alone but should hear cases where there was breaches of implied terms such as those of mutual trust and confidence between the parties.

The Court of appeal rejected this argument and relied on the Nolan v Emo Oil case as authority for the proposition that the employer is entitled to terminate a contract of employment provided proper notice is given.

The Court of Appeal did not reject the argument that an employer could be in breach of an implied term of the contract of employment thereby allowing the Court to intervene on the basis of a contractual breach. In this case, however, the Court of appeal held that Mr Kearney had failed to prove breaches by the employer of implied terms of trust and confidence and had failed to prove bad faith by Byrne Wallace.

Conclusion

Unless there is a breach of the contract of employment the Civil courts will not get involved in a redundancy and the employee will be directed to the WRC with any claim or dispute on the basis of an unfair dismissal claim under the Unfair Dismissals Act 1977.

Case Law

Read the High Court decision in Kearney v Byrne Wallace here.

Read the Court of Appeal decision in Kearney v Byrne Wallace here.

High Court Has No Jurisdiction in Employment Claim to Workplace Relations Commission

If you have ever been dissatisfied or critical of the Workplace Relations Commission in relation to an employment dispute and you have wondered whether you are able to canvas your complaints in the Civil courts a recent (June 2019) High Court decision clarifies the matter.

In Maurice Power v HSE [2019] IEHC 462 Mr. Power asked the High Court to step in and prevent his removal by his employer, the HSE, from his role as CEO of Saolta University Healthcare Group. Importantly from the perspective of the sought High Court intervention Mr Power had already submitted a complaint to the WRC (Workplace Relations Commission) seeking an order that he was entitled to a CID (contract of indefinite duration).

The question then arose as to whether the High Court could interfere in the case or was it obliged to let the WRC deal with the matter.

Background to Mr Power’s case

Mr Power had been employed by the HSE since 1999. In 2014 he was asked to take on the role of interim Chief Executive Officer of the Saolta University Healthcare Group. In 2018 the HSE decided to hold a competition to appoint a permanent CEO and held a competition in which Mr Power was unsuccessful.

Mr Power then claimed he was entitled to a contract of indefinite duration (‘CID’) pursuant to the Protection of Employees (Fixed-Term Work) Act 2003 by reason of his employment on a series of fixed term contracts. He brought a claim to the WRC for an order that he was entitled to a CID.

High Court

Before Mr Power’s complaint was heard by the WRC he sought an order from the High Court preventing his removal from the post and preventing the appointment of anyone else to the position.

The High Court took the view that as Mr Power’s rights under the Protection of Employees (Fixed-Term Work) Act 2003 were statutory rights the correct venue to uphold those rights was the WRC. For this reason, the High Court decided it had no jurisdiction in the matter and could not make the order sought by Mr Power.

Mr Justice Allen held that the administrative tribunals such as the WRC and Labour Court were appointed by the Oireachtas to enforce these statutory rights and the High Court could not interfere.

The Court also held that the orders sought by Mr Power were intended to shape the decision of the WRC when the hearing was held and that even if he was unsuccessful at the WRC he would not lose his job but revert to a previous role. The Court also held that if he was successful damages would be an adequate remedy for Mr Power.

For these reasons the application for an injunction failed.