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:

Questioning at WRC Hearings and 10 Rules for Effective Cross Examination

cross-examination

Since the commencement of the new Workplace Relations Commission (WRC) service in October, 2015 I have been surprised at the inconsistency I have experienced in relation to how the hearing is conducted.

The Workplace Relations Commission Adjudicators have a certain amount of discretion as to how the hearing is conducted, but I have been slightly taken aback by the different approaches of individual adjudicators.

My understanding was that WRC hearings could be described as informal, in comparison with the procedures in the Civil Courts, and were inquisitorial, not adversarial, in nature.

However, a WRC hearing I was involved in required the questioning of witnesses in accordance with the District Court rules for Direct Examination and Cross Examination.

Quite frankly, the WRC adjudicator required the witnesses to be fully cross examined in relation to their entire version of events.

Failing to do so would, in respect of any aspect of their “story”, see that aspect of the story or fact accepted, notwithstanding a different version of events from a different witness.

This being the case, it is a good opportunity to refresh my knowledge and understanding of direct examination/examination in chief and cross examination.

It should be helpful to you too if you are running your own case at the Workplace Relations Commission, or Labour Court, without the benefit of a lawyer.

Examination of Witnesses

There are two types of questioning of witnesses you will engage in:

  1. Direct examination
  2. Cross examination

    Direct Examination aka Examination in Chief

Direct examination is your questioning of your own witness(es). A fundamental rule of direct examination is that you cannot ask a leading question of your witness about a matter or fact that is in dispute.

An example of a leading question would be, “you were dismissed on Monday morning by the chief executive without any warning, isn’t that so?”

However, if a fact is not in dispute, a leading question can be asked eg the name, address, and occupation of the witness, or a statement, and confirmation, that the witness worked for the respondent as a retail assistant, for example.

The way you need to ask questions to avoid falling foul of the rule about asking leading questions is to use words like what, why, who, how, when, where, please explain, what happened, and what happened then, and so on.

So, in the example above you would ask the witness “what happened at work on Monday?”, or “please tell us about your day in work on Monday, 25th April”.

Use simple, clear language and ask your questions in logical, chronological order.

Also, control your witness and prevent him/her from wandering all over the place, and avoid repetition of questions to emphasize facts which are already established.

Cross Examination

Your approach in cross examination will be completely different. You are allowed, and are well advised, to ask leading questions. Unlike the answers you are seeking in direct examination, which may be explanatory or narratives, the answers to your questions in cross examination should be “yes”, “no”, “I don’t know”.

Cross examination can be like a series of statements by you as questioner, and you want short yes/no answers, no explanations or justifications.

So, in the example above when cross examining the boss who dismissed the employee you would say something like, “you dismissed Ms. Smith on monday morning, without warning, completely out of the blue, isn’t that right?

10 Rules for Cross-Examination

Here are ten rules of cross examination that will serve you well:

  1.   Be brief-ask about only one new fact per question
  2.   Use short questions and plain, easy to understand words
  3.   Use leading questions-put words in the witnesses mouth
  4.   Ask questions you know the answer to, unless i) you don’t care what the answer is or ii) it is an apparently innocuous question in a series of questions filling in your knowledge which may lead to a key question
  5.   Listen to the answers; don’t be so focused on asking the questions that you do not listen to the answers, because they could be useful
  6.   Don’t quarrel with the witness, there is nothing to be gained by fighting with a witness and you only end up looking like a fool
  7.   Never let the witness repeat what he said in direct examination
  8.   Don’t permit the witness to explain anything (answers should be yes, no, I don’t know; never “yes, but…”)
  9.   Avoid one question too many-quit when you’re ahead; it can go horribly wrong when you don’t limit your questions
  10.  If your cross examination is subtle, and there is a danger of the decision maker not understanding it, don’t try to explain it during cross examination; explain it later in summing up; this will allow you exploit the curiosity of the decision maker, who will be wondering about the question you apparently left hanging but who now, prior to considering his decision, has heard your explanation in your summation.

One important point to remember: if a witness gives evidence in cross examination that contradicts evidence that you, as claimant/respondent, or one of your witnesses will give in evidence, you must put the evidence you or your witness intend to give to the witness in order to allow him/her the opportunity to rebut it. If you don’t do this then that witness’s version of events will be accepted.

The ten rules above are sound principles in any cross-examination, not just in an employment related dispute.

Also, be mindful of the tone you use in your cross examination. Rarely accuse the witness of lying, instead say ‘perhaps you are mistaken’, and do not bully him. Nobody likes a bully.

Other points to remember:

  • use a logical progression in the questions you ask
  • have a clearly defined purpose for each set of questions
  • use control techniques to keep your witness under control
  • use witnesses own words to force agreement.

Re-examination of your witness

Re-examination of your witness may also be an important part of your evidence. Re-examination allows you to deal with any issues raised in the cross-examination of your witness.

For example, your witness may have been accused of some inconsistency or discrepancy in his/her evidence which might be amenable to a perfectly innocent explanation.

Re-examination allows you to do this and allows you to clarify any evidence your witness has given but which may have been misunderstood by the Adjudicator.

In short re-examination allows the witness to explain and clarify any testimony which may have been challenged or obscured in cross-examination.

It may also be used to restore the credibility of a witness whose credibility has been challenged in cross-examination.

It is arguable that if you present your witnesses testimony clearly and fully in examination in chief there should be no need to re-examine.

Re-examination is useful, however, to clarify any discrepancies or inconsistencies which have emerged between examination in chief and cross-examination.

However, the examiner needs to be sure that asking the question to clarify will give the desired result and not make matters worse or put an unwanted focus on a discrepancy.

For the reasons set out above any re-examination should be brief.

Conclusion

But the most important rule of all? Prepare well, and know your case inside out.

How to Enforce a Workplace Relations Commission (WRC) Decision

workplace relations commission

Have you succeeded in your claim at the Workplace Relations Commission?

If so, the employer has 56 days to carry out the decision. If he fails to do so you can apply to the District Court for a Court order forcing the employer to carry out the WRC decision.

If your decision was for reinstatement or re-engagement the District Court can substitute its own order and award you up to 104 weeks’ pay.

The District Court also has the power to award interest to be paid to you.

It is an offence to fail to comply with the District Court order unless the employer can show, on the balance of probabilities, that it is simply unable to pay due to financial circumstances.

Appealing the Adjudicator’s Decision

If you are unhappy with the decision of the WRC Adjudicator you can appeal the decision to the Labour Court within 42 days. Labour Court hearings are in public, unlike the WRC hearing which is private.

Here are the relevant sections of the Workplace Relations Act, 2015:

Section 43 Workplace Relations Act, 2015-enforcement of decision of adjudication officer

Appeal to Labour Court from decision of adjudication officer-section 44

Enforcement of decision of Labour Court-section 45
Part 4 of the Workplace Relations Act, 2015 deals with complaints and disputes.

How to Enforce a Decision from the Employment Appeals Tribunal

There are different routes for you to take, depending on which act your claim was under.

Here’s a handy chart produced by the WRC showing you where to go.

How to Make a Complaint to the Workplace Relations Commission (WRC)

Workplace-Relations-Commission

The Workplace Relations Commission (WRC) is the new body which, from 1st October 2015, will hear all cases concerning complaints about breaches of employment and equality law in the workplace.

To make a complaint you need to fill out the Workplace Relations Complaint form which you can access here.

WRC Procedures in Investigating and Hearing Complaints

Fill out the Workplace Relations Complaint form accurately, and submit it online.

Be careful, though, that the complaint has been received by the WRC.

You should receive an acknowledgement of receipt immediately; if you don’t, follow up with the WRC.

Most complaints or disputes must be notified within 6 months (different time limits apply to complaints under the Redundancy Payment Acts and Equality Acts) of the alleged breach of your right; 12 months will be allowed in exceptional circumstances and you must show reasonable cause for the delay to an adjudication officer.

All material, documents, correspondence will be copied to the other party so that both parties will have all relevant documents relating to the complaint.

If a complaint is frivolous or vexatious an adjudication officer has the power to dismiss it.  (Section 42 Workplace Relations Act, 2015).

In certain cases, unless one or both parties object, mediation may be used to try to resolve the issue. Mediation is voluntary, confidential, and without prejudice.

Employment Equality and Constructive Dismissal Cases

In Employment Equality and constructive dismissal complaints a statement must be submitted by the complainant, who has the burden of proof in these two categories of cases.

Employment Equality Cases

In this type of case you must give as much detail on the form itself as possible. You must set out the fact, link the facts to the alleged discrimination, and provide any other relevant information to support your case.

Constructive Dismissal Cases

The same requirement applies to constructive dismissal cases. You must set out the facts leading to your quitting the employment, whether you invoked the grievance procedure (you should), any investigation carried out, and any other relevant information.

Other Unfair Dismissal Cases

In other unfair dismissal cases the burden of proof is on the employer/respondent. He has to submit a statement setting out the facts leading to the dismissal including any disciplinary hearing held, investigation, appeal, and so forth.

This must be submitted within 21 days of request from the WRC.

All Other Employment and Equality Cases

A statement should be submitted by the respondent within 21 days of receiving the complaint form from the WRC setting out any legal points he wishes to make, for example there was no dismissal or the complainant was not an employee.

The Hearing

Each party may be asked to give a list of witnesses he proposes to call, and the reason.

If the complainant does not attend the hearing the Adjudication Officer can dismiss the complaint.

If the respondent does not appear a decision may be made in his absence by the Adjudication Officer.

All of these WRC hearings are private and members of the public are not permitted to attend.

After the hearing a decision will be sent out by the Adjudication Officer within 28 days, or as soon as possible thereafter.

Importantly, the WRC hearing is held in private, with the names of the parties being anonymised for publication on the Workplace Relations website.

You might also be interested in questioning at WRC hearings and 10 rules for cross examination.

Appeals

Either party may appeal to the Labour Court. If there is no appeal the decisions is legally binding and can be enforced through the District Court. Appeals to the Labour Court are public.

Here’s a link to the WRC guide to Procedures in the Investigation and Adjudication of Employment and Equality Complaints.

Workplace Relations Bill 2014 Set to Deliver Massive Changes in Employment Law and Prosecution of Employment Claims

workplace-relations

The Workplace Relations Bill 2014, when enacted into law, will have a huge impact on how employment rights in Ireland will be protected.

It is expected to become law on 1st October, 2015.

The current confusing situation where you have five workplace relations bodies-the Labour Relations Commission (LRC), the National Employment Rights Authority (NERA), the Equality Tribunal, Employment Appeals Tribunal (EAT) and the Labour Court-will cease.

There will be two bodies for employers, employees, and legal professionals to deal with:
1. The Workplace Relations Commission which will deal with complaints of first instance and
2. The Labour Court which will deal with appeals.

This should be welcomed by employers, employees, representatives of both, and legal professionals as the current situation is confusing, complex and can lead to “forum shopping”. Currently a dispute with a given set of circumstances can lead to the need to bring the different complaints/issues in different fora.

Early Resolution/Mediation Agreements

The bill also provides for a legally binding early resolution or mediation facility. Participation is not obligatory and parties may opt to proceed straight to adjudication, but where it is undertaken it can lead to a legally binding pre-arbitration agreement that could prove less costly.

An important aspect of this mediation agreement is that if an employer offers a settlement but the employee rejects it, the offer cannot be used as an indication of culpability during a later hearing.

Adjudication sessions will be held in private before a single officer who will hear the claims against a broad spectrum of employment law considerations.

The costs involved for both employees and employers in dealing with different complaints arising from the one set of facts is expected to be a thing of the past.

It is hoped that the 2 new bodies will see a speeding up of claims and appeals and a reduction in the current long wait times.

The thrust of this legislation is to expedite claims where possible but clearly there must remain room for appeal: decisions by an adjudicator can be brought to the Labour Court (within 42 days) with full public hearings points of law to the High Court.

Costs cannot be awarded to either side in a dispute as is the situation at the moment. Legal representation is not mandatory but would probably be advisable.

UPDATE 2015

Workplace Relations Act, 2015

The Workplace Relations Act, 2015 was signed into law by the President in May, 2015 and is expected to come into force on 1st October, 2015 when the commencement order is signed by the Minister.

Read or download the Workplace Relations Act, 2015.