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.

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.