‘Complicated’ Employment Law Cases-Avoid This Common Mistake

If I had a euro for every time an employee told me they had a ‘complicated case’ I would have a nice little stash.

My experience is that most employment cases, and most legal cases, come down to one or two very specific issues. These are the issues on which the entire case stands or falls.

Prove this one or two things and you win; fail to do so and you lose. It is nearly always that simple. The rest is window dressing and so much hot air and bluster.

Employees who tell me they have a ‘complicated case’ fall into one of a few possible categories, the most common of which is they are not sure whether they have a case at all or not.

By ‘case’ I mean a stateable case/justiciable claim/cause of action known to the law. A breach of contract. Or a breach of an employment right. Or a breach of a constitutional right.

A proper bone with meat on it.

Grievances, no matter how many, are probably not going to be enough.

Often what the employee has is a sense of grievance or unfairness or injustice, a sense of ‘this can’t be right’, and a whole pile of issues or complaints gathered up over a period of time.

But they are not actually sure whether the whole lot amounts to a ‘hill of beans’, or a genuine claim or cause of action.

Years ago, when I was heavily involved in retailing, I could walk into a convenience store and get a good feel for the turnover by checking a few key metrics:

  1. How many Irish Independents were sold on a daily basis?
  2. How many boards of Brennans white pans were delivered?
  3. How much milk was supplied.

Once I got a good handle on these figures I could estimate, with a good deal of accuracy, the weekly turnover. Most good retailers could, to be honest.

The same applies to what appears to be an allegedly complex,complicated legal problem. A good lawyer will strip away the trimmings in no time flat and identify the one or two issues that form the basis of any claim.

If he/she cannot identify the issue(s) you can rest assured it is not because it is a ‘complicated’ case. It’s because there is no case.

Not too long ago I was involved in a case at the Workplace Relations Commission in which I received a submission from the other side.

It was impressive. If you are impressed with paper. And folders.

The submission comprised in excess of 15 pages and 147 pages of appendices.

Yes, 147 pages.

My submission was 8 pages.

Yes, 8 miserable pages.

But my 8 pages had a few good things going on:

  1. I addressed the issues that had to be addressed in the case
  2. The adjudicator was happy because I made it really easy to read
  3. I addressed the facts
  4. I addressed the law
  5. I said why my client should win and told the adjudicator what I wanted him to do and told him about the law that supported this request.

Let me give you an example or two.

If I have a client who claims to have been unfairly dismissed by reason of redundancy he needs to prove one or two things:

  1. It was a ‘sham’ redundancy and/or
  2. He was unfairly selected.

Other issues like performance, conduct, loyalty, illness related absence, disciplinary record, discrimination, bullying are irrelevant to the case.

Likewise, if an employee claims to have suffered a psychological/psychiatric personal injury in the workplace by reason of workload or stress or bullying or harassment she will need to show:

  1. She has suffered a recognised psychological injury
  2. The employer’s negligence caused that injury
  3. The injury was forseeable and the employer did not act as a reasonable employer would in the circumstances.

If she proves these things she will win, if not her case is almost bound to fail.

If an employee is claiming to have been discriminated against in the workplace he will have to prove facts from which a reasonable inference of discrimination can be drawn.

But to get out of the starting gate he will have to prove these facts first and show he has a ‘prima facie’ case. Only then does the burden of proof shift to the employer with the consequence that the employer has to prove otherwise.

However, if the employee cannot first prove the ‘prima facie’ case the employer has nothing to do as the WRC adjudicator will find the employee has failed to discharge his burden of proof in the first instance.

And the discrimination has to fall into one of the 9 grounds of discrimination.

If it doesn’t then it is not discrimination. And the case will fail.

Conclusion

They say a great story can be told by a simple formula. Like ‘dog chases cat up a tree, cat gets rescued’.

Or ‘boy gets girl, boy loses girl, boy gets girl again’.

These are uncomplicated stories. But incredibly successful down through the centuries.

In a similar way most legal, and employment law, cases, can be stripped down to bare bones and the issue(s) are visible.

If they’re not, maybe you don’t have a case.

But don’t blame the complexity, or the ‘complicated case’. Because it might not be complicated at all when you strip it down to the bare essentials.

2 Cases That Remind Me Why I Love Being a Solicitor (Most of the Time)

irish solicitor

I have been involved in a couple of cases which were resolved this year, and which reminded me why I love my job and get a great deal of satisfaction in my work from time to time.

Both cases involved employees, both involved High Court legal proceedings, and both were settled with satisfactory outcomes for my clients.

The first one concerned a young man who had suffered a catastrophic psychological/psychiatric breakdown in the workplace. Our case was that the employer was negligent and was liable for the injury he suffered and therefore liable to compensate him for the personal injury and loss of earnings resulting from his subsequent inability to work due to the injury.

Our case was that the employer worked him excessively, placed demands on him which were beyond his capacity, his subsequent personal injury was forseeable and he was entitled to be compensated for this. We also pleaded breach of contract and breach of statutory duty in failing to provide a safe place of work in accordance with health and safety obligations.

In any legal contest it is inevitable that there will be at least two sides to every story and our case was not without its weaknesses. There is seldom a guarantee of success and given the nature of the injury my client had suffered there would always be a concern as to how he would be able to deal with a High Court case, cross-examination, and all the other attendant pressures of going to Court.

There was also other factors to be considered such as the length of time since the injury and the loss of income which was causing problems for my client and his young family, not least in relation to paying his mortgage and the normal day to day expenses you incur with a young family.

And there was, of course, the medical argument that he would only be able to fully recover once his case was finalised one way or another. It is very difficult to recover from a psychiatric or psychological injury if the case arising from that injury remains unresolved and there is a chance you will lose and be in even worse financial and health difficulty.

So, after three years or thereabouts the case was settled to his, and my, satisfaction. It gave me a great feeling of contentment when he came to the office to pick up the settlement cheque and he gave me a bottle of whiskey and a hug. It’s no coincidence that his appearance has improved greatly since the settlement and I have no doubt he is on the road to recovery and a new, less stressful phase in his life.

The other case involved a lady who has a professional qualification and is ambitious for her career. She quit her job with one employer and was moving to another as she saw it as a progression on her career path; besides, it was closer to home.

Her application for the new job went well and she was told she had the job, subject to, amongst other things, a satisfactory reference. However, the reference that her old employer provided was an appallingly inaccurate one. Not alone was it inaccurate it was defamatory of our client and painted her as unprofessional and lazy.

The outcome was that the job offer was withdrawn. When she contacted her old employer about the defamatory reference they immediately withdrew the reference and provided an honest, good reference instead. However, it was too late for the damage was done and her proposed new job had gone to another candidate.

We sued the old employer for defamation in the High Court on the basis that they had a duty to provide an honest, accurate reference and the issuing of the correct reference was done too late and our client had lost the new job and suffered other losses, and damage to her professional reputation, as a result of their negligence in allowing the first, bad reference be supplied to the prospective new employer.

It transpired that when a reference was first sought the furnishing of this reference was left to an employee who had a personal grudge against our employee and this employee took the opportunity to put the boot in when the chance arose.

It proved costly for the employer, however, leading to legal proceedings. This case, too, was settled to the satisfaction of our client. It is worth noting that these settlements, like virtually all such settlements, would be settled without an admission of liability by the employer.

But you will see from these cases that the circumstances which might give rise to legal proceedings are wide and varied: and once proceedings are issued it can be a long time between the act giving rise to the legal proceedings and the ultimate resolution of the case.

In the meantime the personal and financial toll that can come to weigh on the person bringing the claim, and their loved ones, can be terribly onerous.

For this reason it gives me a great sense of relief and gratification when the outcome is a satisfactory one and the client is happy and can put the whole affair behind him/her.

The Conduct of WRC and Labour Court Hearings-Be Prepared for Anything

If you are representing yourself at the WRC or Labour Court you will need to be prepared to adapt your approach depending on how the hearing is conducted.

Let me explain.

You may have familiarised yourself with the rules for the conduct of Labour Court hearings in Labour Court (Employment Rights Enactments) Rules 2016 which are made pursuant to the Workplace Relations Act, 2015.

You may have read, inter alia, as follows:

53. Except in such cases as the Court considers it convenient to take the written submissions as read, each party shall read their submission and the other party
will be afforded an opportunity to comment on the submission presented by the
other party.

54. Witnesses may give evidence and can be cross-examined by the party opposite
or their representative.

From these two rules you would expect, at a minimum, to be able to

  1. Comment on the submission of the other party
  2. Have your witness(es) give evidence and cross examine the evidence of witnesses from the other party

Being able to test the submission and evidence of the other party is, to my mind, of considerable importance. In any dispute it is vitally important that each sides version of events is tested.

I would have thought it was fundamental to the understanding of the 3 persons comprising the Division of the Labour Court hearing your case, particularly as the hearing is a de novo hearing, for rule 48 states:

48. An appeal shall be by way of a de novo hearing of the complaint to which the appeal relates

So, the Division hearing the case are starting from scratch and forming their own view, unsullied or influenced by the original hearing at the Workplace Relations Commission.

However, the Chairman of the Division has wide discretion for rule 47 states:

47. The conduct of the hearing of an appeal will be regulated by the Chairman of
the division of the Court before which the appeal is being heard
.

Therefore, you may have spent a lot of time closely scrutinising the submission of the other party with a view to picking holes in it and challenging it; you may have spent a lot of time anticipating what evidence the witness(es) for the other side will give; you may have spent a lot of time preparing questions for the cross examination of those witnesses; you may have spent a lot of time preparing questions for your own witness to show his case in the best light.

But it could well transpire that that time is, regrettably, completely wasted.

Because you may not get to do any of those things depending on how the hearing is conducted by the Chairman of the Division.

You will need to be ready for this and the best way to do this might be to have prepared your very best submission in the first instance as this submission (6 copies) has to be sent in to the Labour Court not less than 7 days before the hearing.

And then be ready to adapt to the way the Chairman decides to conduct the hearing.

The same situation can arise in a WRC (Workplace Relations Commission) hearing. I was involved in such a hearing in which I was representing the employer in a constructive dismissal case.

In a constructive dismissal case the burden of proof rests with the employee to prove that he/she had no choice but to leave the job due to the conduct of the employer, and that it was reasonable to do so.

I was looking forward to cross examining the employee and, in particular, asking why she had not availed of the grievance procedure in the workplace, why she had not told the boss that she had a problem, and why she had left in a precipitative fashion without giving my client, the employer, the chance to remedy the problem.

I also wanted to ask other questions such as the role her husband had played in her decision to quit, external, personal pressures that may have lain under the surface and which may have compelled her to make a hasty decision.

When the Adjudicator asked her why she had quit the claimant gulped a couple of times, took out a packet of tissues, tears began to run down her face, then she began to sob and the adjudicator, being a sympathetic, kind lady offered to break up the hearing so the claimant could gather her thoughts and recover.

Needless to say I never got to cross examine the claimant or even put one question to her as the conduct of the hearing is entirely within the discretion of the Adjudicator.

During the break the adjudicator approached me and suggested that the case should be settled. A brief conversation with her persuaded me that this was probably a good idea, even though we had a sound, robust defence. My fear was that we would never get to put forward our defence or cross examine in the way that was necessary and we took the option of a ‘tactical retreat’.

Or as Uriah Heap’s mother in David Copperfield exhorted: ‘Uri, Uri, be humble; make terms’ when the fraudulent, dishonest, deceitful activities of Uriah Heap were exposed by Mr. Wilkins Micawber.

In the circumstances, my client was forced to ‘make terms’ and to settle the case for a small amount of money but that’s not the point; we should still have been allowed to test the evidence and challenge the claimant’s version of events which were, quite frankly, incredible.

Sometimes, though, you need to be able to ‘read the room’ and adapt your strategy.

This may be what you will have to do is you are involved in a WRC or Labour Court hearing. Don’t say you haven’t been warned.

The Mediation Act, 2017-What You Need to Know

mediation act 2017

The Mediation Act, 2017 came into law in Ireland in January, 2018. The purpose of this legislation is to allow parties to a dispute to avoid the costs of litigation and to reduce the number of disputes coming before the Courts.

Mediation is a collaborative process which aims to encourage the parties to a dispute to arrive at their own solution, with the professional assistance of the mediator. The mediator is to facilitate the parties and provide his/her professional expertise and experience but the determination of the dispute is up to the parties themselves.

The mediator can make proposals to resolve the dispute when the parties request this. There may also be a need for experts in a mediation if the issues are complex-for example a financial dispute with taxation implications.

It will have significant implications for solicitors in their daily practice of advising clients, and for clients who wish to institute litigation proceedings.

Before commencing legal proceedings on behalf of a client a solicitor will have to swear a statutory declaration that

  1. He/she has advised the client of the availability of mediation as a way to settle the dispute
  2. Give the client information about the benefits of using mediation, as opposed to instituting legal proceedings
  3. Give the client names and addresses of mediators who may be able to assist in resolving the issues between the parties
  4. Tell the client that mediation is voluntary and may not be appropriate where the safety of the client is at risk or where there is children and their welfare/health/safety is at risk
  5. Advise the client of the need for confidentiality in a mediation and the enforceability of a mediated agreement
  6. Advise the client of the solicitor’s obligation to provide a statutory declaration confirming the provision of the information above to the client

The statutory declaration should accompany whatever document is used to commence legal proceedings. If this does not occur the Court can adjourn proceedings until such time as the solicitor has provided the Court with the statutory declaration.

The Mediation Act, 2017 will not apply to certain proceedings, for example High Court judicial review proceedings and an arbitration under the Arbitration Act, 2010. The full scope of the act is set out in section 3, Mediation Act, 2017.

A court will be allowed to take into account when awarding costs any party’s unreasonable refusal or failure to use mediation.

Part 2 of the Act sets out the provisions re mediation generally including the role of the mediator, codes of practice, and the enforceability of settlement agreements arrived at through mediation.

Part 3 sets out the obligations of solicitors and barristers with respect to mediation and Part 4 sets out the role of the Court.

Section 19, Mediation Act, 2017 is an interesting one as it allows a Court to adjourn court proceedings to facilitate mediation:

9. (1) Where—

(a) parties have entered into an agreement to mediate, and

(b) one or more of the parties referred to in paragraph (a) commences proceedings in respect of the dispute the subject of the agreement to mediate,

a party to the proceedings may, at any time after an appearance has been entered and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to adjourn the proceedings.

(2) On application to it being made under subsection (1), the court shall make an order adjourning such proceedings if it is satisfied that—

(a) there is not sufficient reason why the dispute in respect of which the proceedings have been commenced should not be dealt with in accordance with the agreement to mediate, and

(b) the applicant party was at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary for the proper implementation of the agreement to mediate.

(3) This section is in addition to and not in substitution for any power of a court to adjourn proceedings before it.

 

Some commentators have advanced the opinion that an employer, with an employment contract containing a clause agreeing to mediation in the even of a dispute, can have Court proceedings adjourned pursuant to section 19. It is too early to say how a Court will view this argument but it is probably advisable for an employer to have such a clause in his contract of employment as he has nothing to lose in doing so.

Section 16 provides for a court inviting the parties to engage in mediation and section 17 provides for the mediator to provide a report to the Court to explain why the parties have not so engaged or to explain why the mediation has failed and they wish to re-enter legal proceedings.

Conclusion

The Mediation Act, 2017 is to be welcomed as it should allow more parties in dispute resolve their issues without the cost of going to full blown legal proceedings including a Court trial.

And if you are an employer it cannot do you any harm to insert a clause in your contract of employment providing for the use of mediation before instituting legal proceedings.

‘Building a Case’-It’s Time to Put the Shovel Down

building a legal case

From time to time I am approached by a potential client who wants to ‘build a case’ against their former employer.

I quickly let the person know I have no interest in ‘building a case’, and advise them against it, too.

Let me tell you why.

If you have a valid legal claim or cause of action the ‘case/claim’ should be able to stand on its own two feet, without any requirement for ‘building’. To win a legal case you will need to do two things:

  1. Prove the facts that support your case
  2. Prove the law that supports your case

If you do not have facts that support a case from the outset all the building in the world will do you no good. You will be scrabbling around in desperation to try to cobble together some mish mash to get one over on your former employer, or the other party if it is not an employment related dispute. You would be far better off recognising that you are aggrieved, perhaps insensibly angry, and want to teach him/her a lesson.

But you run the risk of making an even bigger mess for yourself, and wasting time and money in the process if you embark on a course of ‘building a case’.

Look: when you are in a hole the first thing you need to do is put the goddamned shovel down.

Don’t misunderstand me. If you have a case a decent lawyer will recognise it very quickly.

What you need to do is give him/her the facts and relevant documentation surrounding your employment. Your solicitor will quickly recognise

  1. Whether you have a cause of action
  2. What the likelihood of success is
  3. What the possible remedies are.

When you have this information you will be ready to make a cool, rational decision about proceeding or not.

‘Building a case’

Building a case is not like building a wall or a dog house. When you are building a wall and there are no blocks you can use bricks, or stones. Building a dog house can involve all sorts of alternative materials.

But a legal case or claim must stand on its own facts. You cannot make them up. You cannot have ‘alternative facts’ as the White House spokesperson claimed in relation to Trump’s vainglorious claim that his inauguration crowd was the biggest since the pan was sliced.

Alternative facts are an oxymoron-a contradiction in terms.

Neither can you have alternative law-there has either been a breach of the law, and a consequent breach of your rights, or not.

It doesn’t matter whether it is an employment matter, defamation, property dispute, personal injury, breach of constitutional right, probate dispute, a commercial dispute, or a family law row.

The facts are the facts and the law is the law. Sooner or later your ‘case’ is going to have to face these inescapable facts and you are going to have to discharge the burden of proof to win your case.

As Charles Dickens said in Hard Times,

“Now, what I want is Facts. Teach these boys and girls nothing but Facts. Facts alone are wanted in life. Plant nothing else, and root out everything else. You can only form the minds of reasoning animals upon Facts; nothing else will ever be of any service to them.”

I do not agree with this quotation, not in the slightest. Children should be taught much more than facts. Things like decency, honesty, kindness, generosity, an appreciation for beauty, art, literature, etc.

But when you are considering commencing legal proceedings or bringing an employment related claim you would do well to remember this quotation, for your case will walk slowly at first, and then run; or fall flat on its face.

Spend your time scrambling around in the weeds for stuff to ‘build a case’ and you will almost certainly fall.