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.

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).