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:
- How many Irish Independents were sold on a daily basis?
- How many boards of Brennans white pans were delivered?
- 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:
- I addressed the issues that had to be addressed in the case
- The adjudicator was happy because I made it really easy to read
- I addressed the facts
- I addressed the law
- 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:
- It was a ‘sham’ redundancy and/or
- 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:
- She has suffered a recognised psychological injury
- The employer’s negligence caused that injury
- 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.
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.