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.

The Essential Procedures for Pursuing Your Claim at the WRC (Workplace Relations Commission)

Since the introduction of the Workplace Relations Act, 2015 a new system of adjudicating employment complaints and disputes was introduced. The new system is a simpler one and did away with the Rights Commissioner and Employment Appeals Tribunal service and was replaced by a WRC Adjudication in the Workplace Relations Commission.

The Workplace Relations Commission Complaint Form

The starting point for your claim is the WRC complaint form. (You can access the form on this page.)

If you have a complaint about an employment or equality right, or have a grievance under industrial relations legislation you must use the Workplace Relations Commission Complaint Form. (I have previously written an article about how to bring a complaint to the Workplace Relations Commission).

The complaint must be made within 6 months of the breach of your right, although the Workplace Relations Commission Adjudicator can extend this time to 12 months where there is reasonable cause shown for the delay. What is reasonable cause will be decided by the Adjudicator.

The WRC will copy all correspondence between the parties who are called the “complainant” and “respondent”. The WRC have a mediation service which will be offered to the parties in suitable cases.

This may simply involve a phone call from the WRC to the parties to see if they can broker a deal between the parties. If the mediator/WRC employee is unsuccessful the case will go ahead for adjudication.

Statements from the Complainant

In a claim for constructive dismissal, or an equality based claim, the complainant must submit a clear statement setting out the details of the complaint.

In all other unfair dismissal cases the respondent is obliged to provide a clear statement within 21 days of the request from WRC.

If this procedure is not complied with the hearing will still go ahead but the adjudication officer may draw an inference(s) from the failure.

In an employment equality case the complainant must set out in detail the facts from which discrimination can be shown or inferred.

In a constructive dismissal case the complainant should set out as much detail as possible on the WRC complaint form, including any grievances raised, investigations carried out etc.

In other unfair dismissal cases the respondent must set out in his statement the facts leading to the dismissal, including any disciplinary hearings, appeals, legal points etc.

Other Employment and Equality Cases

If a respondent intends relying on statutory records in his defence these should be sent to the WRC prior to the hearing. Any other points the respondent wishes to make-for example in relation to a legal point or the wrong employer being named-should be raised within 21 days of receipt of the complaint from the WRC.

WRC Hearing

Both parties will then be contacted with a date for the hearing, and asked to advise of any special requirements they have, for example, an interpreter. A postponement will only be given in exceptional circumstances, and the request must be made in writing to the WRC with an explanation. Consent of the other party would be useful, too.

It is up to the parties to ensure that the WRC has all relevant documentation prior to the hearing and that witnesses, if any, are available for the day.

Conduct of the Hearing

My experience of the way the hearing is held is that it can vary, depending on the particular WRC adjudicator.

Nevertheless, the adjudicator will indicate how he/she wants to conduct it and he/she will

  • Ask questions of any party or witness
  • Allow each party to question the other party and any witness
  • Ensure fair procedures and natural justice

The WRC hearing is in private, so is not open to the public or media.

The written decision is supposed to issue within 28 days of the hearing with the parties and witnesses anonymised.

Update August, 2017

The WRC have issued, at the end of August, 2017, updated guidelines about the conduct of WRC hearings.

You can read these guidelines here.

Appeal and Enforcement

The decision can be appealed within 42 days to the Labour Court and the decision can be enforced through the District Court after 42 days if no appeal is lodged.

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2 Surprising Employment Hearing Stories That Should Make You Think Twice About Representation

employment-hearing-representation

Stunned.

I was absolutely flummoxed.

I couldn’t believe my luck.

It was the morning of an EAT hearing and I was there early to speak to my client. My client was the employer and the claim against him was brought by a former employee for constructive dismissal.

Constructive dismissal is a difficult case to win. But on this occasion I was worried because the circumstances which led to the employee walking out and quitting the job did not reflect well on my client.

Far from it.

In fact, I was convinced the employee would receive a great degree of sympathy from the EAT, and would probably win his case.

I had explained this to the client, and suggested settling the case would be a good course of action to embark upon, if we got the chance.

I had told him to bring the cheque book, too, and he was ready to settle it.

We had a figure in mind, and it was correctly based on the financial loss incurred by the employee since leaving the job. He had managed to find a new job but he still had 6 months’ or so of unemployment, and if he was successful this was what he would win, at the very least.

In calculating his financial loss, to which he would be entitled, you disregard any social welfare he would have received during the time out of work.

So, if the lad was on €600 per week and he was out of work for 6 months (26 weeks) his financial loss would be approximately €15,600. (See financial loss calculation in unfair dismissal cases)

Our settlement offer figure was based on this calculation.

I approached the other side and approached the legal professional representing the employee. After introducing myself and exchanging pleasantries I asked him what his client’s loss was, knowing full well what it was, and what his client would take.

I was amazed at the reply, and struggled to keep a straight face. He estimated the loss at around €10,000.

I asked him how he calculated that figure.

He replied that his client had received approximately €5,200 from the Department of Social Protection, and he subtracted this figure from €15,600 and arrived at the €10,000 figure.

I said I would speak to my client, and see could he stretch to this.

Naturally my client was delighted because we had just saved approximately €5,000, and settled the case in about 5 minutes flat. It was a stroke of good luck for my client, because he was ready to pay €15,000.

Unfortunately for the employee his representative made a costly mistake in calculating his financial loss. I can only presume that the representative did not do much employment law in his daily work.

 

Some months later I was involved in another case-this time at the WRC (Workplace Relations Commission)-and acting for the employer again. On the other side were the employee and her solicitor.

The employee had a number of complaints against my client, her former employer.

I instructed counsel in this case and we were fully prepared to fight the case and each and every claim in the complaint. However, we also had a preliminary argument before the hearing commenced at all.

This was that the complaint was made outside the 6 months’ time limit provided, and therefore the WRC adjudicator simply did not have jurisdiction to hear the case.

When the Adjudicator walked in to deal with the case he said he had a few questions to ask of the complainant and her solicitor.

He immediately honed in on the time limit question and decided, without any submission from our side, that he simply did not have jurisdiction to hear the claim as it was out of time.

That was it. It was over, and the case was thrown out in a matter of a minute.

 

Conclusion

You have a number of choices when it comes to bringing a claim to the Workplace Relations Commission (WRC).

You can run the case yourself, or you can get a HR person to represent you.

Or you can get a solicitor, or a solicitor who does quite a bit of employment law.

The Art of Mediation in Employment Disputes

 

 

workplace mediation

Is mediation “woo woo”?

Does it involve the parties holding hands and singing “Kumbaya”?

Has it a real contribution to make to resolve employment disputes?

Let’s take a look.

What is mediation?

What is mediation? When is it appropriate? What are the advantages of using it?

Mediation is a form of alternative dispute resolution, often used in employment disputes.

Mediation allows parties in dispute to see whether they can find an informal solution to their difference(s) through a third party-a mediator.

It is commonly used for personality clashes, or disputes over performance. It can also be useful in relation to allegations of bullying, harassment, miscommunication, relationship breakdown, and misunderstandings of rights/obligations.

It is a voluntary process which must be agreeable to both parties if it is to succeed.

The idea is that the parties themselves arrive at their own solution, with the assistance of the mediator. It prevents the referral of disputes to bodies such as the Workplace Relations Commission or the Civil Courts.

The role of the mediator is to facilitate a solution between the parties, not to impose one.

It is not binding on the parties until an agreement has been reached as to how to solve the problem which has arisen. Either party can walk away until agreement has been reached.

The advantages of workplace mediation

  • It is informal
  • Both parties get to have their say
  • It is inexpensive, compared to litigation or a claim to a body like the Workplace Relations Commission (WRC) or Labour Court, with the costs of the mediation more likely to be certain and clear at the outset
  • The parties arrive at their own solution, with the help of a mediator
  • It can be much faster than waiting for a day in Court, or some other tribunal such as the WRC and the early addressing of problems can prevent issues from festering and getting worse, making the ultimate solution more difficult.

WRC Mediation Service

The Workplace Relations Commission offer a mediation service, called the Early Resolution Service.

If both parties are agreeable, this form of mediation may be offered to the parties. The process is carried out over the phone by a WRC employee-a Mediation Officer-or in a face to face meeting, depending on the availability of resources.

This mediation facility is provided for in section 39 of the Workplace Relations Act, 2015, and the purpose is to attempt to resolve the dispute without the matter going to adjudication.

The general principles of this service include

  • It is voluntary and both parties must be agreeable
  • A party can withdraw at any stage
  • It is confidential
  • The mediator is impartial and it is the parties themselves who arrive at their own agreement
  • Both parties must have their say
  • It is flexible
  • It should be non judgmental
  • It should be non adversarial

All records and notes as a result of the mediation process are confidential and cannot be used in subsequent proceedings or claims with one exception: where the parties have agreed terms to resolve their differences any subsequent dispute in relation to those terms can see the notes/records used to resolve that particular dispute.

If agreement is reached under a Mediation Officer as part of a WRC mediation the terms of agreement are recorded by the Mediation Officer and a record will be kept by the WRC and given to both parties. Any subsequent breach of the terms is actionable in Court as a breach of contract.

If the dispute is not resolved by mediation it can then be referred to a WRC Adjudication Officer for adjudication.

The stages of mediation

Mediation will generally have the following stages:

  1. Both parties will meet the mediator alone to discuss their ideal outcome of the mediation
  2. A meeting with the parties will then take place to hear the issues from the perspective of both parties
  3. A context is placed on the issues
  4. The issues are explored and, hopefully, an agreement can be drawn up reflecting the solution which has been agreed between the parties
  5. The outcome of the agreement is explained to both parties and a copy of the signed mediated agreement is given to both parties.

When mediation is inappropriate

There are a number of situations where mediation may be inappropriate:

  1. It should not be used as a first resort as people should be encouraged to speak to one another and resolve their differences at the earliest juncture
  2. It should not be used by management as a way to avoid taking decisions, and managing
  3. If adjudication is needed, for example if there is a question about some behaviour or action being unlawful
  4. If the party who is alleging harassment or discrimination wants it investigated and adjudicated
  5. One of the parties is completely intransigent and using mediation will raise unrealistic expectations of a resolution
  6. The parties do not have the power to settle the matter.

A word of caution for employers: be careful that you do not put employees through a mediation process which will make matters worse, and perhaps ultimately come back to your door in the form of a claim.

Mediation agreement

An employment mediation agreement should be signed by the parties before the mediation commences, which indicates the parties willingness to engage in mediation to try to resolve their differences.

This will contain

  • The parties
  • An authority and status clause dealing with the parties and the mediator
  • A confidentiality and without prejudice status of mediation clause
  • A settlement formalities clause
  • A clause dealing with the costs of the mediation
  • A clause dealing with the legal status and effect of the mediation
  • The applicable law (which jurisdiction)
  • A signing page for both parties and the mediator

Conclusion

Mediation has an important role to play in the resolution of employment disputes, but is not always appropriate.

A skilled, experienced mediator can have a huge impact on the ultimate success or failure of the mediation.

All The Claims That Can Be Brought to the Workplace Relations Commission (WRC)

workplace relations commission

Are you an employer? Employee?

Are you confused about the employment related claims that can be brought to the WRC?

If an employee wants to bring an employment related complaint or claim to the Workplace Relations Commission (WRC), he/she must fill out a standard form available on their website.

There are 15 options for complaint on their complaint form (although the complaint form says there are 16).

We have recently written articles about each one of those complaints. Here they are: