Constitutionality of Workplace Relations Commission (WRC) Challenged in High Court

Labour Court Appeals

The constitutionality of the Workplace Relations Commission (WRC) and Labour Court framework for adjudicating on employment disputes is being challenged in the High Court.

The Supreme Court has decided on 20th March 2019 that the employee, Mr Zalewski, is entitled to have his challenge heard in the High Court which had previously decided he did not have the necessary locus standi.

The outcome of this case in the High Court could be seismic.

Background

Mr. Zalewski had brought claims to the WRC: one for unfair dismissal under the Unfair Dismissals Act 1977 and one for non-payment of wages under Payment of Wages Act 1991. When Mr. Zalewski attended the adjudication hearing the employer-Buywise Discount Store Limited-sought an adjournment as a witness was not available. No evidence was heard.

When Mr. Zalewski attended with his solicitor for the new hearing date on 13th December 2016 he discovered that a decision had been issued by the adjudication officer. This decision was issued on 16th December 2016.

Judicial review in the High Court

Mr. Zalewski and his solicitor were understandably shocked and disappointed and made a protective appeal to the Labour Court and commenced judicial review proceedings in the High Court.

His judicial review application sought declarations that parts of the Workplace Relations Commission Act 2015, the Unfair Dismissals Act 1977, Payment of Wages Act 1991, and the powers and functions granted to adjudication officers in the Workplace Relations  Commission were unconstitutional as these powers constituted the administration of justice and the Constitution provides certain safeguards for the administration of justice in Ireland.

The WRC then, as part of an attempt to settle these proceedings, offered a new date for the hearing of Mr. Zalewski’s claims. He refused this offer and the WRC then asked the High Court to dismiss his application on the basis that he did not have locus standi.

The High Court agreed and dismissed his judicial review. However, he appealed to the Supreme Court who found that he did have the requisite locus standi and sent it back to the High Court to be heard. That is where the case lies now and the outcome has tremendous significance for anyone involved in employment law.

The employee’s case is that his claims will be dealt with by way of a statutory scheme-the WRC system-which is inconsistent with the constitution and the administration of justice in Ireland.

The first part of the challenge is the constitutional obligation for the administration of justice to be dealt with by a court, based on articles 34 and 37 of the Constitution.

Article 34.1 of the Constitution of Ireland provides:

1 Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

Article 37.1 provides:

1 Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

Article 40.3 provides

3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

The second part of his challenge is to do with the appointment of adjudication officers and the powers that are given to them, the fact that the hearings are in private, and that evidence is not taken on oath.

All of these matters go to the heart of a person’s constitutional right to fair procedures and natural/constitutional justice.

The grounds for the challenge also lie in the absence of any legal requirement of a legal qualification for an adjudication officer to be appointed, no requirement for the taking of sworn evidence during WRC hearings, the hearings being held in private, and the appeal going to a body-the Labour Court-which does not include persons required to be legally qualified.

Read the full Supreme Court decision of 20th March 2019 here.

Outcome

The outcome of this challenge has immense significance for the future of the WRC and the Labour Court and will be watched closely and carefully by employers, employees, HR professionals, and lawyers.

The Small Employer Under Pressure from a Surprising Source

Peter and Betty have a small business and never expected this. But they feel stressed and pressurised from a most unexpected source: their new employee.

They have been in business for 17 years and never had any problems with staff.

Yes, there was the occasional, infrequent dispute or argument but nothing that amounted to anything serious. They were never sued or had to face any claim from an employee-in fact, no threats were made against them, not even in the heat of the moment.

But all that changed when they took John on. John is in the job about 10 months now and his mood swings and changeable humour from one day to the next is worrying.

That’s not the biggest concern, however.

John, from an early stage in his employment, was quick to tell Peter and Betty what his employment rights were and how he could bring claims against them for all types of breach. He told them about working time records, rest breaks, public holidays, the WRC, NERA, the Labour Court, the minimum wage, his entitlement to a written contract-the list seems endless.

Peter and Betty never had to face this before and the frequent mention of the Workplace Relations Commission has them tremendously strained and anxious.

The biggest problem in all this, however, is the uncertainty and not knowing what the true situation is.

Is John right and are they ignorant, law breaking, exploitative employers, what can happen next, is John lying or exaggerating, what is the worst outcome, and most importantly: what can they do now.

Peter and Betty are typical of many small business owners up and down the island of Ireland who have successfully and happily employed many people down through the years without any problems or difficulty. They have never had to concern themselves too much with employment law and stuff like that because there were never any issues.

Their accountant made the necessary returns every month or every year and paid the appropriate tax, prsi, universal social charge, and whatever else the government decided had to be paid.

But this constant, low level hostility and implied sense of threat from an employee who is only in the workplace for 10 months and who they look after well is getting to them. It’s even putting a strain on their relationship.

What Peter and Betty needed was a bit of advice and some clarity about their obligations and entitlements and what options were open to them now. How, or was, the relationship with John going to improve in the years ahead; were they looking at this problem in perpetuity with no say as to who they could and could not employ; could they terminate now;  if so, on what grounds; are they open to a claim for redundancy; can John bring a claim for unfair or constructive dismissal.

If you are a small employer in a similar situation you may be surprised to find that your situation is not as bleak or oppressive as you think. But it will depend on the particular circumstances and a large factor in this type of situation is how long the employee has been in the employment.

Other questions to look at: is there a written contract, is there a probation period, has the employee obtained 12 months’ service? These are critical questions.

One of the biggest causes of stress is the fear of the unknown; any small employer can remove this fear by getting advice from a professional.

Getting advice from a professional will cost a few bob.

But not getting advice or getting it from an amateur is likely to cost more.

The Intermeddling Well Intentioned Friend/Partner-Don’t Become a Victim

meddling friend

One of the most annoying, frustrating individuals I frequently encounter is the well meaning, well intentioned supporter/friend/partner/spouse.

He miraculously appears

  1. To know the law inside out
  2. To know all the facts and circumstances of the victim’s unfortunate experience in the workplace.

He, and it’s nearly always a he (sorry lads), insists on answering all the questions I put to the aggrieved, distressed employee who has come to me with a problem arising from the workplace.

He means well, sure, but how he can tell me what happened in the workplace on various dates when he was in a different parish is a source of mystery and puzzlement to me. And when he has never worked as much as 5 minutes in that workplace.

How he can tell me, with such vivid accuracy, what the colleague or rude customer or ignorant manager/supervisor said to the ‘victim’-the employee I am trying to assist and advise-baffles me.

Of course, the truth is he doesn’t know what happened or what was said; all he knows is what he has been told by the lady who has come to me for advice.

So, why not let her speak?

Why not let her tell me what happened?

Why not let her tell me what is on her mind?

Why not let her give me first hand evidence by her direct account rather than his second-hand coloured version of hearsay?

Some lads are just irresistible.

No matter how much you try to ignore them, no matter how much you avoid eye contact for fear of encouraging them, no matter how reasonable you act in putting a few questions to the upset employee it proves to be an exercise in futility. They are incorrigible.

And then when it comes to the law-my goodness-they have Googled and researched to their heart’s content for weeks on end and have finally come across one or two cases that have a passing relationship to their partner’s case.

And they have noted the amount of compensation awarded and cannot see why their partner’s case is not worth at least this much along with a significant premium.

The fact of the matter, however, is that these lads know as much about the law as I know about root canal treatment.

Or treatments for depression.

Or genetics or the value of closely studying yeasts.

The best thing they could do would be to give support-real support-to their partner/friend/spouse. Not to interfere or purport to speak for them or overbear their mind to the point where the victim is sitting there without a voice or an opinion and getting increasingly unsure of what happened that led to the problem in the first instance.

But just let them talk, let them tell their story.

Don’t be one of these lads.

You’re in the way.

Sorry. I know you mean well, and you have your friend’s/partner’s interest at heart.

But you would be better off letting your partner/spouse tell her story in her words.

Because apart altogether from the benefit from a legal perspective it’s also therapeutic for the person you love.

If you are the employee, you need to be aware of this phenomenon and avoid it like the plague. It will hinder, not help, you.

It may involve some ‘tough love’, some honesty.

But sometimes ‘tough love’ is just what we need, and what’s right.

3 Mistakes I Have Observed at the WRC/Labour Court in the Last 10 Months

irish solicitor

I have represented a good deal of clients in the Workplace Relations Commission and Labour Court over the last 10/12 months. In that time period I have observed what I consider to be 3 significant mistakes at those hearings.

You might learn something from them; I know I have.

Let’s take a look, shall we?

1. Asking too many questions in cross-examination

I acted for a client-an employee-in the WRC who had a great story to tell.

I took him through direct evidence and this was his opportunity to tell his story. My job was to ensure he got to tell all his story in the most sympathetic light to his case.

I did an average job but did leave out two very important questions. These 2 questions were vital pieces of evidence and left a couple of gaps in my client’s evidence.

I need not have worried for too long, however, because the HR representative for the other side (the employer) did my job for me when he was cross examining. He asked the questions that I had forgotten and my client took the opportunity with both hands and plugged the holes in his original evidence.

It is arguable that this was even better than if I had asked the questions because the fact that the answers came out in cross examination may have given the evidence even more credibility.

The big mistake? The HR representative for the other side asking too many questions.

Sometimes the best thing you can do in cross examination is shut up and sit the hell down.

Don’t pay any heed to Rumpole of the Bailey setting a fiendishly clever trap for a witness; don’t mind the cross examination scenes you see in TV crime dramas or Top Gun when Tommy Lee Jones cross examines Tom Cruise.

These pieces of storytelling or theatre are just that and should be recognised as such.

The lesson? Don’t ask questions in cross examination for the sake of hearing your own voice; sometimes the best thing you can do is shut up.

2. A stray document

Another mistake I encountered was being given a bunch of documents by the representative for the other side and finding a document-a letter-which was of immense value to my client’s case and which we did not know existed.

And even if we knew it existed we would not have had any right to it as the other side could have claimed it was entitled to legal privilege.

But here it was amongst a huge bunch of the usual stuff like a diamond in a pigsty.

The value of the document was that it showed the other side-the employer-was told something by a professional advisor, did not act on it and this failure to act ultimately led to my client’s job loss.

This went to the heart of our claim for unfair dismissal.

The mistake? We should never have know of the existence of this document, never mind come into possession.

3. Failing to settle a case

This case involved a number of employment related claims at the WRC (Workplace Relations Commission). But there was also a personal injury claim in being.

The HR representative for the other side (the employer) recognised that our case was a very strong one and the signals from the Adjudicator was that they would be well advised to talk to us with a view to settling. We were well ahead.

We took a break and negotiated for a little bit and there was not a huge difference between us in the end about the money stuff but we did not agree.

The mistake, in my view, was the the HR representative failed to recognised that if the case was settled it would have been on the basis that all claims arising from the employment were settled.

This would have included the Personal Injury claim. This is very significant.

This would have been a great piece of work for his client, the employer, and would have given him a great deal of comfort and certainty. Personal injury claims, if they go against you, can be expensive.

But the HR person seemed unable to recognised this value, or did not have the competence or confidence to do so.

A relatively small amount of extra money would have settled the whole shooting match-that is, all claims arising from the employment, including the personal injury claim.

Instead the hearing went ahead and we won a decent award. And the Personal Injury claim is still in being and will be pursued.

Conclusion

We all make mistakes but the best thing we can do is learn from them, file away the lessons, and move on with confidence that we will not make the same mistakes again.

Hopefully I will avoid these 3 mistakes that I came across in the last 10/12 months.

Technical Breaches of the Law and the De Minimis Rule-the Labour Court’s Approach

the labour court

What happens if there is a technical breach of the law by an employer but the employee has not suffered any prejudice or detriment?

Do you know what the “de minimis rule” is? It might be a good idea to be aware of it.

Let me explain.

An employer must give an employee a written statement of certain terms and conditions of employment within 2 months of starting the employment. This is normally referred to as a written contract.

The relevant legislation-the Terms of Employment (Information) act 1994-sets out the various things that need to be included in this statement. There are some further matters that must be included pursuant to the Terms of Employment (Additional Information) Order 1998 (SI 49/1998).

Between the 1994 Act and the statutory instrument from 1998 there is approximately 20 matters that must be covered.

What happens however if there is a technical breach of the obligation? By this I mean an employer does indeed give a written statement but omits a small number of things that he should have included, or there is some other technical breach of the obligation.

What happens if a minor, trivial, technical breach does not lead to any prejudice or disadvantage to the employee?

A recent Labour Court case dealt with such a claim in Component Distributors (CD Ireland) Ltd and Brigid (Beatrice) Burns.

The Complainant, Ms Burns, had brought a claim to the Workplace Relations Commission alleging breach of the Terms of Employment (Information) act 1994. The breaches were minor and the Adjudicator awarded her €200.

She appealed this decision to the Labour Court.

The alleged breaches of the employer’s obligations were

1. The full name of the employer was not set out in the contract insofar as the contract omitted “CD” and “(Ireland)”

2. The statement did not set out the employee’s breaks

3. The employer’s annual leave year did not run in tandem with the leave year referred to in the Organisation of Working Time Act 1997

The Labour Court and the De Minimis Rule

The Labour Court referred to a case called Patrick Hall v Irish Water TED161 in which it set out its approach to be adopted where a technical breach of this Act which had no practical consequences occurred. It then adopted and applied the reasoning set out in that case and it is worth taking a look at here.

In Patrick Hall v Irish Water TED161 the Labour Court commented:

As appears from the above, these complaints are wholly devoid of any substantive merit. The State has already incurred the costs associated with providing the Complainant with a hearing of these complaints at first instance and it is now obliged to incur the cost in time and expense of providing him with a full appeal before a division of the Court. That takes no account of the cost incurred by the Respondent in defending this case, both at first instance and now on appeal. The combined associated costs of processing and hearing these complaints is grossly disproportionate to any value that could have accrued to the Complainant if the technical infringements of which he complains had not occurred.

Moreover, the letter of offer furnished to the Complainant dated 25th July 2014 invited him to contact a named person if he wished to discuss or seek clarification on any of the terms proffered. The Complainant signed the statement without demur and returned it to the Respondent. Neither then or at any subsequent time did he request further or better particulars on any matter pertaining to his employment. The Court has no doubt that had he sought further information on any matter pertaining to his employment, including the matters which form the subject of his present complaints, it would have been provided by the Respondent.

In the circumstances of this case that represents an unacceptable squandering of public resources. It is a manifest absurdity to suggest, as the Complainant does, that these contraventions, if such they are, could or should be met with an award of monetary compensation. That is particularly so in circumstances in which the matters now complained of could easily have been rectified by a simple request to the Respondent to provide any further information that the Complainant considered necessary.

De Minimis rule

It is an established principle of the common law that a Court should not squander its resources in dealing with claims that are without substance because the contraventions complained of had no practical consequence for the plaintiff. This principle is encapsulated in the Latin maxim de minimis non curat lex (the law does not concern itself with trifles). The classic statement of where this principle should be applied is contained in the judgment of Henchy J. in the Supreme Court’s decision in Monaghan UDC v Alf-a-Bet Publications Ltd. [1980] I.L.R.M. 64, at page 69. Henchy J articulated a generally applicable test in the following terms: –

“In such circumstances, what the Legislature has, either immediately in the Act or immediately in the regulations, nominated as being obligatory may not be depreciated to the level of a mere direction except on the application of the de minimis rule. In other words, what the Legislature has prescribed, or allowed to be prescribed, in such circumstances as necessary should be treated by the courts as nothing short of necessary, and any deviation from the requirements must, before it can be overlooked, be shown, by the person seeking to have it excused, to be so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially, and therefore adequately, complied with.”

The Labour Court went further:

The Court is satisfied that, in the circumstances of this case, any deviations that may have occurred from what the strict letter of s. 3 of the Act, or from what the statutory instrument at issue prescribes, are so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule. There can be no doubt that the Respondent provided the Complainant with all the information that he required in relation to the essential elements of the terms and conditions attaching to his particular employment. What is complained of is a failure to provide information on matters that had no practical significance in the context of the employment that he was offered and accepted.

In this case, Component Distributors (CD Ireland) Ltd and Brigid (Beatrice) Burns, the Labour Court determined as follows:

Determination

The within appeal is upheld in part as set out above. In its decision in Irish Water the Court held that where mere technical breaches of section 3 of the 1994 Act occur, “the dictates of fairness or equity could not justify an award of compensation”. The Court follows that reasoning in its approach to this claim.

The Court determines that the amount of compensation which is just and equitable in all the circumstances is nil. The Recommendation of the Adjudication Officer is varied accordingly.

You will note that even though the Labour Court agreed that there were breaches of the relevant act those breaches were so trivial, technical, peripheral or otherwise so insubstantial as to come within the de minimis rule.

And the Labour Court held that the technical breaches did not justify any compensation and reduced the employee’s award from €200 to nil.