I attended a WRC hearing recently with a client, the employer
on this occasion, and the employee/Complainant did not show up to present his case
and be heard.
For our side there was myself, my client and two witnesses
and we had prepared thoroughly for the case.
My client and the witnesses had taken time off work and cancelled
engagements to be there to meet the claim. I had blocked the day off in my
calendar because it is impossible to know how long any case will take to be
heard; it depends on a number of factors including
The number of complaints
The number of witnesses
Any documentation to be considered
The complexity of the issues to be teased out
And so on.
In this case, however, I argued that the case should be
struck out for want of prosecution. I argued that if the Complainant wanted an
adjournment he could easily have requested one as notification of hearings usually
give at least 3 or 4 weeks’ notice and this complainant’s representative
advised the adjudicator that his “client” was out of the country.
We have not had a decision yet but I would be hopeful that my
application that it be thrown out for want of prosecution will succeed.
My understanding is that unless there is some credible
excuse or explanation, and provided the adjudicator is satisfied the non-attending
party has been notified of the hearing, that the case will fail.
This is what happened in ADJ-00025136
involving a service worker and hospital and a claim under the Redundancy Payments
Acts. The Complainant did not show up and the adjudicator was satisfied he was
informed in writing of the date, time, and place of the hearing.
The Respondent was ready to present their case and the Adjudicator
found “In these circumstances and in the absence of any evidence to the
contrary I conclude that the complaint is not well founded.”
Preparing properly for all these WRC cases takes time and
money and it is only right that a party who fails to attend, unless there is an
exceptional reason, should be penalised. Perhaps there would be less “no shows”
if the parties had to pay an application fee when making the claim, which fee
could be returned once they go ahead with their claim and it is not an abuse of
process and is not frivolous or vexatious.
But when Michael received his personal data from the employer he believed it was not complete-there was stuff missing. So he made a complaint to the Office of the Data Protection Commissioner.
He was then deeply unhappy with the way the Office of the Data Protection Commissioner dealt with his complaint and commenced legal proceedings against that office.
By the time Michael came to visit me he had also submitted a claim to the Injuries Board because he believed he had suffered a psychological or psychiatric injury as a consequence of the anxiety and stress that the dismissal from his job had caused.
His WRC hearing is coming up next week and he is getting nervous. Nervous he will lose and his sense of grievance and wrong will be deepened even further.
Now he sits in front of me and I am thinking hard about the best way to break it to him. By “break it to him” I mean my view that apart from a towering sense of grievance the only real cause of action he has is the unfair dismissal claim.
And I truly believe his prospects with this claim are less than 50/50. Because there is a good chance the employer will be able to prove there were “substantial grounds” to dismiss. (There had been a few disciplinary issues over the years with a live warning on his file).
Fear of picking one claim
I meet quite a substantial number of persons who are deeply aggrieved with the unfair way they believe they were treated by their employer.
But when they must pin their colours to the mast and put their claim in front of a third party such as a Workplace Relations Commission adjudicator they are afraid. Afraid of losing. Afraid that the third party will not see the situation in the same light as them.
So they search around. They search around for other allegations and claims to make because they want to win and get one-something-over on the employer.
Because they want an “each way” bet, just in case their claim fails. They are confident, of course, but just in case..
The essence of the claim
When I look at the facts, however, I see that when the claim is stripped down to its essence the issue to be decided will be a simple one: was the termination of the employment a discriminatory dismissal?
If Michael can prove this he wins. If he cannot, his claim is bound to fail. All the other stuff will be a sideshow, an attempt to nail the employer with something. But that’s all.
Avoiding the stark truth
Michael, like many employees I meet, will raise all sorts of spurious, tangential grievances and complaints because they want to avoid the stark truth. The truth that their claim may fail and it will hurt.
The third party
No matter how strongly you feel about the way you were treated in the workplace, regardless of your dispute with a property owner or a neighbour or anyone else for that matter, ultimately a third party will decide on the merits of your case.
This third party may be the Workplace Relations Commission, the Labour Court, any of the Civil Courts (District, Circuit, High, Supreme). It doesn’t matter-the bottom line is somebody will give a binding opinion on whether your case wins or loses.
Conclusion: be honest with yourself
You need to accept that you may win, or you may lose, but you need to be honest with yourself. Let the case or claim stand or fall on its merits, its facts, the law supporting it.
Don’t waste your time trying to concoct a case if none exists. You owe it to yourself to let a decision be made, if that is what you want, give it your best shot and appeal if necessary.
If you are involved in an employment dispute you need to think strategically. You need to think about the next step, not just this one.
I meet an average of 15 to 20 employees every week in my office in Enfield. They bring and discuss a wide range of issues, complaints, grievances, and justiciable legal claims with me.
But they often fail to give sufficient thought to whether there is a real remedy open to them if and when they pursue the matter further.
Marta and Peter both came to me, for example, and told me about how disappointed they were with their employer when they were out sick. The employer had not contacted them to see how they were or enquire about their welfare and Marta and Peter took this personally. They felt they were not appreciated as employees, were taken for granted and their years of loyal service were undervalued.
But what could they do about it?
Not a lot, if truth be told.
It would be best practice for the employer to keep in touch and exhibit a good deal of concern for a sick employee.
Best practice, though, not obligatory.
Thus, there is nowhere for Peter and Marta to pursue this any further.
But the first remedy open to Jacob was to raise a grievance in the workplace. The likelihood is that his grievance would be upheld, the failure on the part of the employer would be fixed, and that was that.
The next step? Back to work because there was no place else, no other remedy open to the employee.
If his complaint was not upheld it would be open to him to make a complaint to the Office of the Data Protection Commissioner. This referral may or may not lead to a recommendation by the Data Protection Commissioner to the employer to fix whatever is wrong.
That may well be the end of it, however, unless there was an egregious breach of the employee’s data protection rights.
Grievances in the workplace
If an employee has a grievance in the workplace he or she is perfectly entitled to invoke the grievance procedure to raise the issue and have it dealt with. But he needs to remember there are generally only two outcomes possible: i) the grievance will be upheld or ii) it will not be upheld.
If it is not upheld, and assuming any appeal comes to the same decision, that is the end of the matter.
If it is upheld perhaps a disciplinary procedure against a colleague will be the next step for the employer. Once the employer deals with the matter, however, it is over. There may well be no other remedy open to the aggrieved employee.
Trade disputes under Industrial Relations Act 1969
But this will only lead to a legally unenforceable, non binding recommendation which may only lead to further frustration for the complaining employee.
If the employee leaves the job she can bring a claim for constructive dismissal. But this is a difficult case to win and the outcome of financial loss only may prove to be a useless, valueless outcome for the employee who has just voluntarily walked away from her job.
Justiciable claims and remedies that carry weight
There are a number of claims arising from the employment relationship that carry significant remedies. For example, the Protected Disclosures Act 2014 contains remedies of up to five year’s salary for breaches of certain rights of the employee.
Unfair dismissal and claims for discrimination can see awards of up to two years’ salary. Personal injury claims can lead to significant awards under the headings of general damages and special damages (for out of pocket expenses flowing from the injury/damage).
One of the most important tasks that I face on a regular basis is the management of employees’ expectations.
A significant number of employees come to me with wildly unrealistic expectations for a resolution of their workplace issue(s). Their expectations appear to be founded on a number of common mistakes.
Unfair v unlawful
One of the primary reasons is, firstly, the failure to recognise the critical difference between what’s unfair and what’s unlawful. What’s unfair is unfair but what’s unlawful is actionable.
There is a world of difference between perceived unfairness and bias in the workplace and unlawful activity of the employer which will give rise to a cause of action and an actionable claim.
If you get into a dispute with the employer and go to battle on a sense of unfairness alone it will be like going to war with a gun that only fires blanks. You are bound to fail.
To succeed in the WRC or Labour Court or the Civil Courts you need to prove a breach of a statutory entitlement or a breach of contract or a failure by the employer to afford and recognise a constitutional right.
You cannot, for example, accuse an employer of “discrimination” or “harassment” without proving facts from which a reasonable inference of discrimination or harassment can be shown. Every allegation of a breach of your employment right will need to be proved in the appropriate forum.
Those who accuse must prove.
Another reason for unrealistic expectations is overreliance on workplace stress as a weapon in any dispute or legal action.
Any employee who goes to their GP and complains of feeling stress as a result of issues in the workplace. But the ordinary workplace stress, for which your GP will be willing to provide a medical certificate is not sufficient to ground a legal claim against the employer. You need much more than that to succeed with a personal injury claim for a negligently inflicted psychological injury.
Bullying and harassment
Bullying and harassment are complaints that I hear about regularly. But many employees view certain actions of the employer or colleagues as bullying behaviour when that is not the case.
If an employee is asked to account for his performance or conduct, or is unaccountably absent from the workplace, or if complaints or allegations have to be put to the employee, this is not bullying behaviour.
It may only be management or reasonable responses from the employer to discharge his duty of care to all employees in the workplace.
Bullying is repeated inappropriate behaviour that undermines the dignity of the employee. Asking an employee to explain why stock is missing, for example, is a legitimate request from the employer, not bullying.
Disciplinary procedure imperfections
Any employee who is subjected to a disciplinary procedure is going to feel a sense of grievance, especially if a sanction such as a written warning or dismissal is imposed. The employee will then subject the whole procedure to very close scrutiny and expect once he finds any imperfections or infirmities in that procedure that he will win any subsequent claim as a consequence.
That is not the case because perfection is not necessary from the employer’s perspective. Once the employer affords natural justice and fair procedures he will probably be in a good place to withstand any claims arising from it.
However, the employee can have the expectation that once she finds anything wrong at all she will win a claim.
This is not the case.
These three examples are only the tip of the iceberg but they are common scenarios which I experience frequently when advising employees.
I see it as part of my job to temper the expectations of employees who are anxious and enthusiastic to bring a claim, with bundles of misplaced confidence of succeeding, if the confidence is misplaced and there is little prospect of success.
Have you an employment issue that want to take further?
Maybe you are considering pursuing the matter on the basis
that you feel your employment right has been breached? And you are wondering
where you need to or what your options are.
Let’s take a look, shall we?
WRC (Workplace Relations Commission)
The vast majority of employment claims should be brought to
the WRC (Workplace Relations Commission) in the first instance.
You do not have a choice when it comes to a statutory entitlement
you may have-for example, a dispute concerning unfair dismissal, non payment of
wages, failure to give you annual leave or rest breaks, and so forth. These
types of claim must be brought to the WRC.
The WRC also deals with discrimination in the area of
employment, the provision of goods and services, and trade disputes.
If you are not happy with the outcome of the WRC Adjudicator’s
decision you can appeal this to the Labour Court.
So, the WRC is the venue for most employment disputes or
You can also bring some claims concerning your employment to
the Civil Courts.
The first such claim would be for breach of contract and/or wrongful
dismissal. This would cover a situation where your employment contract provides
for 1 month’s notice for the termination of your employment and you are only
given 1 week.
Clearly there is a breach of a term of the contract and you
are entitled to sue in the Civil Courts for wrongful dismissal on the basis
that you are entitled to 3 further weeks’ notice.
You must also travel a different route if you suffered a
personal injury in the workplace and wanted to sue your employer for the loss
and damage arising. Firstly, you would have to submit your claim to the
If the injury is a physical one the Injuries Board will be
able to assess the compensation that would reflect your injury an loss.
However, if the injury is a psychological or psychiatric injury you will have
to pursue this through the Civil Courts.
You will also have to go through the Courts if the employer
or you does not accept the assessment value that the Injurie Board puts on the
In rare cases you might also go to the Courts to seek an
injunction preventing your dismissal, or some other relief relating to your
employment. This scenario would not be your first port of call, however, and is
expensive, especially if your trip to the High Court is unsuccessful.
If you felt a constitutional right was ignored or breached
you would also go to the Civil Courts to vindicate your rights, including to
your good name.
There may be one or two other venues to pursue an employment
matter but this would only be in very specialised areas-for example, if you are
a doctor or nurse or solicitor you may be facing an application to have you
struck off the professional register for your profession.
The vast majority of employment related claims must be firstly
brought to the WRC. Some may be brought to the Civil Courts.
It is important from your perspective to be clear at the
outset where you can bring your particular issue, the potential cost and
Regarding costs each party pays their own costs at the WRC
or the Labour Court. Going to Court, however, runs the risk of the Judge
awarding all costs, for each side, to the winning party.