‘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.

Reinstatement of Dismissed Employee-A Warning for Employers

unfair dismissal-1

Are you an employer?

If you have dismissed an employee you are almost certainly aware that a successful claim against you by your former employee can lead to an award of compensation of up to 2 years’ salary.

But did you know that there are 2 other remedies that can be awarded if the employee’s claim succeeds?

Yes, the Workplace Relations Commission adjudicator, in an unfair dismissal hearing, can also order that the employee be reinstated or reengaged. This can be the worst possible outcome for some employers.

It is not a frequent outcome to an unfair dismissal claim and more often than not the employee will only tick the box on the WRC claim form seeking compensation. If this is the case then the adjudicator has no decision to make once he decides the employee has been unfairly dismissed.

But sometimes an employee will seek reinstatement to their old position. He may do this for tactical reasons-for example, it may encourage the employer to attempt to settle the claim before it goes to a hearing at WRC for fear of losing.

On other occasions, however, by virtue of the nature of the industry or specialised nature of the job, the employment prospects for the dismissed employee may be poor. If this is the case the employee may be perfectly happy to resume his old job, or an alternative position in the same organisation, which can be an equally bad result for the employer, who would be happy to never see the employee again.

This can cause a major headache for the employer who will doubtless argue that the relationship between employer and employee has broken down and there is a lack of trust and confidence between the parties and they should not be forced into resuming the old relationship.

This is a widely used and accepted argument. But it’s not always successful.

A Banker v A Bank Adj ADJ-00001266

The WRC adjudicator, on 28th March, 2018, made an order for re-instatement in this case involving a banker versus his former employer, a bank. The banker, a trader, was dismissed for gross misconduct and brought a claim for unfair dismissal.

Without going into all the details (there is a link below for full details of the decision) the decision of the adjudicator, Mr. Kevin Baneham, was that the unfair dismissal claim was to succeed due to the imperfections and flaws in the bank’s disciplinary procedure which led to the dismissal. The next step to be decided was the appropriate redress for the employee.

The redress sought by the banker, once he succeeded in his claim, was re-instatement. The adjudicator agreed that re-instatement and re-engagement were possible awards as the banker was a popular employee whose performance appraisals were good and was a good team player.

Mutual trust and confidence/disharmony

The bank, however, argued that re-instatement was not appropriate as it could lead to a poor relationship between the parties in the future, there would inevitably be disharmony, and the relationship of mutual trust and confidence between the parties was shattered. The adjudicator did not agree.

The adjudicator had regard for the fact that the banker operated in a strictly regulated environment and industry and a dismissal would possibly be fatal to obtaining alternative employment in such an industry, given the relatively limited options. For this reason the adjudicator ordered that the employee be re-instated as it was ‘just and equitable in this case’.

For the reasons provided in this report, I find that the complaint of unfair dismissal is well founded and, pursuant to section 7(1)(a) of the Unfair Dismissals Acts, I order the re-instatement by the respondent of the complainant in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.

You can read the full decision in this case here: ADJ-00001266

Lessons for employers and employees

If you are an employer ensure you or your advisor checks the WRC complaint form to see if the redress sought by the employee includes re-instatement or re-engagement.

If you are an employee you may consider nominating those options as redress you are seeking as it may put some pressure on your former employer to settle the case before it goes to hearing, for fear you will win and an order for re-instatement is made.

New Pay Rates and Conditions of Employment for Plumbers and Pipefitters

plumber and pipefitter SEO

Are you a plumber or pipefitter?

If you are there is a new sectoral employment order which sets minimum pay rates and other conditions of employment for you.

The sectoral employment order (SEO) came into force on 6th March, 2018 and covers the following employees:

Qualified Plumbers and Registered Apprentice Plumbers (Craftsperson) and Qualified Pipefitters and Registered Apprentice Pipefitters (Craftsperson) working in the Sector.
For the avoidance of doubt qualified plumbers and pipefitters who have acquired additional or advanced welding qualifications and who are required to function as welders on a day to day basis within the sector come within the scope of this Order.

Rates of Pay (hourly)

Category 1 €22.73
Category 2 €23.33
Category 3 €23.60

Apprentices

Apprentice Year 1 33.3% of Category 1 hourly rate of pay

Apprentice Year 2 50% of Category 1 hourly rate of pay

Apprentice Year 3 75% of Category 1 hourly rate of pay

Apprentice Year 4 90% of Category 1 hourly rate of pay

The SEO also defines the normal working week, normal daily working hours, and unsocial hours payments.

  • Hours worked between normal finishing time and Midnight Monday to Friday inclusive-time plus a half
  • Hours worked between Midnight and normal starting time Monday to Friday-Double time
  • First four hours worked after 7 am on Saturday-Time plus a half
  • All other hours worked on Saturday-Double time
  • All hours worked on Sunday-Double time
  • All hours worked on Public Holidays-Double time plus an additional day’s leave

The SEO also deals with pensions, pension contributions, a sick pay scheme and how disputes are to be resolved.

Legally Binding

This SEO is legally binding in the sector, regardless of whether the employer has a unionised workforce or not, as these are statutory minimum rates and conditions in the sector. These SEOs replace the old Registered Employment Agreements which were declared unconstitutional by the Supreme Court in 2013.

Here is a link to the full order: SECTORAL EMPLOYMENT ORDER (MECHANICAL ENGINEERING BUILDING SERVICES CONTRACTING SECTOR) 2018

Appeals to the Labour Court-What You Should Know

Labour Court Appeals

If you are not satisfied with a decision in the Workplace Relations Commission you may appeal the decision to the Labour Court.

The Labour Court is quasi-judicial and an adversarial forum (Donnelly v Timber Factors Ltd [1991] 1 IR 553). However, administrative tribunals such as the Labour Court are not bound as strictly as the criminal or civil courts in relation to the rules of evidence, including the rule against hearsay.

Section 44, Workplace Relations Act 2015 provides for an Appeal to Labour Court from decision of adjudication officer. The Labour Court can also deal with an appeal from an employer arising from a compliance notice he has received pursuant to section 28, Workplace Relations Act, 2015.

Each case is dealt with by a Division of the Labour Court; a Division comprises a Chairman, an Employer Member, and an Employee Member.

The time limit for an appeal from a decision of an Adjudication Officer is 42 days from the date of the decision. The day of the decision is the first day of the 42 days and time can only be extended in ‘exceptional circumstances’.

Labour Court business, unlike WRC hearings, is conducted in public and the Labour Court rules are set out in four parts as follows:

  1. Procedure for appeals of adjudication officer in relation to employment equality and unfair dismissal
  2. Procedure for appeals of Compliance notices served on employers
  3. Procedure for appeals in respect of other employment enactments
  4. The Procedure to be followed at the hearing itself.

The Labour Court rules can be found here.

Appeals re unfair dismissal and employment equality acts

The appeal is commenced by using a standard form and a copy of the Adjudication Officer decision. Three weeks later you must submit your written submission which is then sent to the Respondent.

Respondent then has three weeks to file a replying submission.

Extending time- ‘exceptional circumstances’

The time of 42 days allowed for the appeal can only be extended in exceptional circumstances. Useful cases in relation to what is accepted as exceptional circumstances include:

  • SAP Landscapes Ltd v Gutkin & O’Neill UDD 6 & 7/2016
  • Kildare and Wicklow Education and Training Board v Igoe PWD 26, 27 & 28/2016
  • Galway & Roscommon Education Training Board v Kenny UDD 24/2016
  • HSE West v Barry UDD 32/2016

Pre-Hearing Witness Statements

Both parties are required to send in pre hearing witness statements at least 7 days in advance of the hearing. These statements should state

  • The name of the witness
  • A summary of the witness’s evidence
  • Copy documents which will be relied upon at the hearing

A De Novo Appeal

The appeal in the Labour Court is de novo; this means the partries start from scratch and the decision of the adjudication officer of the WRC is completely ignored and has no influence on the decision of the Labour Court.

Fitzgibbon v Law Society [2014] IESC 48 makes this clear, and the appeal body is required come to its own conclusions on the evidence available to it.

However, the party appealing must canvas the same claim, not an entirely new one. (See Dawn Country Meats Ltd v Hill DWT 141/2012).

Written submissions

The parties are expected, in their written submissions, set out

  • The facts which are agreed and in issue
  • The legal basis for the submission
  • The remedy sought (in the case of the complainant)
  • Transcript of the decisions/judgments relied upon

In essence, the parties are to set out their case in full and not focus on the adjudication officer’s decision or how he/she conducted the WRC hearing.

The hearing commences with the party bearing the burden of proof reading his submission; the respondent reads his submission and the parties are invited to comment on the other’s submission.

Eacn party then examinses and cross-examines each side’s witnesses and the Court may have questions for the witnesses.

Parties can represent themselves or engage the services of a solicitor/barrister/HR representative, or whoever he chooses.

Adjournments and witness summonses

A party can seek an adjournment in writing in advance of the hearing, after seeking the consent of the other side first.

The Labour Court has the power, pursuant to section 21, Industrial Relations Act, 1946 to summons witnesses if it so decides.

Appeals

A party can appeal a determination of the Labour Court to the High Court on a point of law only.

(The above is a summary of what I learned from a paper delivered by Alan Haugh BL, Deputy Chairman of the Labour Court, at a Law Society CPD Masterclass on 9th March, 2018).

Warning: When Legal Argument and Syllogistic Reasoning is Not Enough to Win Your WRC Case

legal reasoning

Let’s call a spade a spade.

If you are at a WRC hearing and you have a well constructed legal argument prepared, based on syllogistic reasoning, you can be easily set back on your butt.

First, let me explain what syllogistic reasoning is.

Syllogistic reasoning involves a logical argument based on deductive reasoning. It involves

  1. A major premise or proposition
  2. A minor premise or proposition
  3. A conclusion.

Let me give you an example.

  1. All men will die.
  2. Mick is a man.
  3. Mick will die.

In this example you can reasonably conclude from the major and minor premise that Mick will die one day.

The major premise is generally the rule, the minor premise is the facts of this particular case. And then you have reasonable, logical conclusion based on applying the rule to the facts.

This is how many legal arguments will be constructed. Let’s take a real world example in the area of employment law.

Let’s accept the major premise that to terminate someone’s employment without any reason or notice after they have 12 months service is unlawful because it constitutes an unfair dismissal.

And let’s say the facts of a case are that this is precisely what happened Maureen-she was fired one Monday morning by her boss, Terry, without any explanation and told to pack her things-then you can reasonably conclude that Maureen has an extremely strong case on the grounds of unfair dismissal.

Let’s assume you are Maureen and you go along to the WRC hearing and represent yourself in your unfair dismissal claim. Then a strange thing happens.

Terry starts giving evidence and explaining what happened and breaks down uncontrollably. Terry tells how his wife was diagnosed with cancer two weeks before the incident, he wasn’t himself, did not know what came over him, the Revenue Commissioners carried out a raid on his garage on foot of a malicious complaint from a former disgruntled employee, and his dog died.

The WRC adjudicator just happens to be a middle aged man around the same age as Terry and his wife, coincidentally, was diagnosed with cancer 9 months before. The adjudicator is visibly shaken by Terry’s story and has a great degree of sympathy for him.

In fact, he adjourns the hearing for 15 minutes to gather his thoughts, and let Terry compose himself. When the hearing resumes the adjudicator turns to you and suggests that settling the case might be in your best interest.

What would you do?

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This story has exaggerated facts to illustrate a point. No matter how strong you think your legal argument is a strong emotional story can be hard to overcome, especially if two things are present:

  1. If the adjudicator has a stronger feeling of empathy with one of the parties
  2. There is a conflict of evidence between the parties.

We know, for example, that when an adjudicator at the WRC or a Judge in court is faced with a conflict of evidence he/she will have to choose which version of events he/she prefers.

And that may well turn the case in favour of one party or the other. The Adjudicator decision may well contain a line, “there was a conflict of evidence between the parties and I preferred the evidence of xxxx”.

Therefore no matter how strong you feel your case is and no matter how well you have constructed your legal arguments you may run into a situation where the outcome is far more unpredictable than you expected.

Throw in the fact that each WRC adjudicator is entitled to conduct the hearing however he chooses and it can be a frustrating and unpredictable process. For example, I have been involved in hearings where cross examination of the main witness was not permitted; in other cases it was actively encouraged.

Sometimes, no matter how strong your case, the smart thing might be to retreat from an “all duck and no dinner” approach, and settle it. Especially when you feel that the other party’s version of events is-rightly or wrongly-more likely to be accepted by the adjudicator.

Conclusion

Much of the skill and wisdom involved in any case is required for this type of decision, not necessarily or solely to prosecute or defend the case based on the legal reasoning.