The Cost Effectiveness of Bringing Certain WRC Claims

Labour Court Appeals

I took a quick look through the latest decisions from the WRC this morning. There is a facility on the WorkplaceRelations.ie website which allows you to see the latest decisions and the week in question is from the 23rd September 2019 to 29th September 2019.

I only glanced at about 5 decisions but of those 5 two grabbed my attention.

Claim for €70

The first one was ADJ-00021926 which was a claim by a maintenance operative against a property maintenance company. This involved a claim under the Industrial Relations act 1969 for outstanding expenses of €70 due to the worker.

The employer did not attend the hearing and the WRC recommended that the employee be paid the €70 and a further €350 for the inconvenience of having to claim to the WRC.

The problem for the employee, however, is that as his claim was brought under the Industrial Relations Act 1969 the recommendation is not legally binding or enforceable.

The second case that took my attention was a claim for redundancy by a kitchen fitter against a kitchen provider (ADJ-00016292). The employee was successful in the case which was held over 2 days and was awarded €619.

Cost effectiveness

What struck me from both of these cases was the question of cost effectiveness for all parties: the employee, the employer, and the WRC.

In the first case involving the property maintenance company the claim at the outset was for €70 and it was brought under an act that can only result in an unenforceable recommendation; this may or may not be why the respondent did not show up.

The second case ended up, after 2 days, with an award of €619 but when you consider the cost incurred by employee, employer, and WRC over a 2 day hearing you would have to question the cost effectiveness of claims like these.

Perhaps if a claim was below a certain amount it could be dealt with without the need for a hearing; perhaps written submissions by both parties (they are supposed to send these into the WRC in any event) and a desk based decision by the Adjudicator.

I am not questioning the right of any complainant to submit a claim, regardless of the monetary value, and recognise that an employee may wish to bring a claim on a point of principle and to show that he/she was treated unfairly and/or unlawfully by the employer.

But a more cost effective method might be worth considering for claims below a certain monetary value which might be to the benefit of all parties.

Is the WRC (Workplace Relations Commission) Biased Towards Employers?

Many visitors to my Facebook page about employment rights in Ireland have a dim view of the WRC (Workplace Relations Commission). Some of these disappointed complainants believe the WRC is useless and in favour of employers.

On this post, for example, you will see comments such as

‘WRC is crap of employers’ weapons’, 

‘A complete shower of pricks…

Told me i was off my head go home.’

‘The wrc weren’t much use to tesco staff.’

‘Biggest mistake anyone can make is to go to WRC – look up decisions and you will see patterns’

‘Kangaroo court at best’

‘The WRC are wortless’

‘They weren’t much use to me either absolutely wasted my time’

Is that the case? Can you, as an employee complainant, get a fair hearing and have a reasonable chance of success? Are the dice loaded against you?

Conspiracy theories can be hard to dispel and unsuccessful claimants to the WRC are understandably disappointed. They blame the system, or the WRC, or the government, or the employer, or the other side’s representative.

They often overlook their own case, however, and the way it was presented. And the facts underlying that case and whether they proved those facts.

Then there is the requirement to prove a breach of the law in respect of the claimant’s employment rights.

Sometimes, but rarely, cases are straightforward. Slam dunks.But they are rare enough, to be frank.

Most times, however, there is at least three sides to the story-the claimant’s, the employer’s, and the truth.

What these disappointed commenters fail to understand is their case was probably unsuccessful because the facts of their case meant they were unable to prove a breach of the law by their employer.

Their case did not fail because the WRC favours employers, it didn’t fail because of some conspiracy, it didn’t fail because the WRC is biased; it almost certainly failed because the complainant failed to

  1. Prove the facts
  2. Prove the law 

Essentially the facts of the case, or the facts that were proved, did not support the contention that the claim they were pursuing was proven.

It is the easiest thing in the world to blame the referee if you lose a match. It is human nature to believe the referee stitched you up and favoured the other team.

It is far more difficult to accept that you were not good enough on the day and the other team were deserving winners.

Similarly, it is easier to blame the WRC generally or the Adjudication Officer or some other target for the failure to prove the claim presented.

But that is not fair on the WRC or the Adjudication Officer who I have always found to be fair, professional, and knowledgeable about employment law.

Last week I wrote about a sexual harassment case at the WRC which attracted an award of €30,000-18 months salary- to the employee and a case of indirect harassment which saw an award of 12 months salary-€38,000- for the employee who lost her job because she was unable to accept moving from part time work to full time.

Conclusion

The truth of the matter about the WRC’s effectiveness for employees is inconvenient and less sensational than the allegation that there is a conspiracy to do down the employee and make sure her claim for breach of her employment right fails. 

The truth is if you present a decent case of breach of the law and prove the facts of your case you will win. And if you fail to do so your claim will fail.

This is the way it should be. You must prove the facts, and you must prove breach of an employment right. 

It’s as simple as that. 

And if you fail, don’t blame the ref. But my experience is that you will get a fair hearing. 

Here are the 2 recent cases to which I refer above and where employees were awarded €30,000 and €38,000:

  1. Indirect discrimination
  2. Sexual harassment

How to Make a Decision to Bring an Employment Claim to WRC or Not

Are you torn between bringing a claim to the Workplace Relations Commission (WRC) or walking away from the issue?

I meet employees on a weekly basis who face this decision. On the one hand they feel they have been treated unfairly, and perhaps unlawfully, in the workplace. But they face the tough decision to submit a claim to the WRC or even commence legal proceedings in the civil courts or walking away, forgetting about it, and putting the difficulty behind them.

It is not an easy decision.

Let’s take a look at some of the factors you will need to consider.

Justice

Many employees speak about getting justice and wanting to do something about what they see as the essential unfairness of how they have been treated by the employer. This appears to be a noble, principled position to adopt.

But if it involves a claim which will inevitably involve time, stress, and legal costs and the potential financial payback does not exceed the costs incurred it may be prudent to have a second think about bringing the claim.

Let me give you a simple example.

Let’s assume you have been dismissed from your job and you believe you have a strong case for unfair dismissal and you are anxious to pursue it.

Let’s assume, too, that you have been successful in getting a new job quickly after the termination of the old one and you have only been out of work for 3 weeks.

The Unfair Dismissals Act 1977 provides that if you succeed in your claim to the WRC the compensation you can be awarded is “financial loss”. Financial loss is essentially loss of pay or remuneration as a result of your sacking.

But your financial loss, assuming you start the new job 3 weeks later, is only 3 weeks’ wages.

Now, let’s assume you were taking home €500 per week, then your loss is €1,500. In these circumstances, if you are successful the WRC adjudicator can award you a maximum of 1 month’s salary which is approximately €2,000.

So, you might win €2,000 if you succeed but you will have to pay your own legal costs and it is extremely unlikely that your legal costs will not comfortably exceed €2,000. And then you must consider the stress of putting yourself through the whole process and the possibility that you will lose, in which case you are now out of pocket and your sense of unfairness and injustice has just increased significantly.

Now consider you do win but the employer has deep pockets and appeals the WRC decision to the Labour Court. You will have more legal costs and there is the possibility of your win at the WRC being overturned and you being further out of pocket.

Let me be clear: I am not trying to put you off, you may be perfectly happy to pursue your claim on a point of principle and let the cards fall where they may. There may well be an aspect of clearing or vindicating your good name and that is worth fighting for.

But you do need to think through the process from start to finish and weigh up the pros and cons and look at the potential outcomes.

For example, your case would be a completely different one if you were out of work for 6 months and had tried your best to get a new job. In this situation your financial loss will be 6 months’ wages so the financial analysis of your potential claim is radically different. To put it bluntly, it may well be worth a punt.

Justice v financial reality

You may have to weigh the justice or principle of your case against the financial reality and decide whether to pursue the matter or not. This can only be done by a cold headed analysis of the potential claims you have, the possible outcomes and remedies, and the probability of each outcome.

Conclusion

Bringing a claim to the WRC, Labour Court, or civil courts is an easy thing to do. But before you decided to do so you should consider the overall situation, what the potential outcomes might be, and the various steps along the way to the final conclusion, not just the first, easy step of submitting a claim.

You need to weigh it up like the moves in a chess game. Thinking only 1 move ahead is bound to end in disaster.

To assist with your decision, and to ensure you know what factors to consider, it’s a smart idea to get professional advice.

Constitutionality of Workplace Relations Commission (WRC) Challenged in High Court

Labour Court Appeals

The constitutionality of the Workplace Relations Commission (WRC) and Labour Court framework for adjudicating on employment disputes is being challenged in the High Court.

The Supreme Court has decided on 20th March 2019 that the employee, Mr Zalewski, is entitled to have his challenge heard in the High Court which had previously decided he did not have the necessary locus standi.

The outcome of this case in the High Court could be seismic.

Background

Mr. Zalewski had brought claims to the WRC: one for unfair dismissal under the Unfair Dismissals Act 1977 and one for non-payment of wages under Payment of Wages Act 1991. When Mr. Zalewski attended the adjudication hearing the employer-Buywise Discount Store Limited-sought an adjournment as a witness was not available. No evidence was heard.

When Mr. Zalewski attended with his solicitor for the new hearing date on 13th December 2016 he discovered that a decision had been issued by the adjudication officer. This decision was issued on 16th December 2016.

Judicial review in the High Court

Mr. Zalewski and his solicitor were understandably shocked and disappointed and made a protective appeal to the Labour Court and commenced judicial review proceedings in the High Court.

His judicial review application sought declarations that parts of the Workplace Relations Commission Act 2015, the Unfair Dismissals Act 1977, Payment of Wages Act 1991, and the powers and functions granted to adjudication officers in the Workplace Relations  Commission were unconstitutional as these powers constituted the administration of justice and the Constitution provides certain safeguards for the administration of justice in Ireland.

The WRC then, as part of an attempt to settle these proceedings, offered a new date for the hearing of Mr. Zalewski’s claims. He refused this offer and the WRC then asked the High Court to dismiss his application on the basis that he did not have locus standi.

The High Court agreed and dismissed his judicial review. However, he appealed to the Supreme Court who found that he did have the requisite locus standi and sent it back to the High Court to be heard. That is where the case lies now and the outcome has tremendous significance for anyone involved in employment law.

The employee’s case is that his claims will be dealt with by way of a statutory scheme-the WRC system-which is inconsistent with the constitution and the administration of justice in Ireland.

The first part of the challenge is the constitutional obligation for the administration of justice to be dealt with by a court, based on articles 34 and 37 of the Constitution.

Article 34.1 of the Constitution of Ireland provides:

1 Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

Article 37.1 provides:

1 Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

Article 40.3 provides

3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

The second part of his challenge is to do with the appointment of adjudication officers and the powers that are given to them, the fact that the hearings are in private, and that evidence is not taken on oath.

All of these matters go to the heart of a person’s constitutional right to fair procedures and natural/constitutional justice.

The grounds for the challenge also lie in the absence of any legal requirement of a legal qualification for an adjudication officer to be appointed, no requirement for the taking of sworn evidence during WRC hearings, the hearings being held in private, and the appeal going to a body-the Labour Court-which does not include persons required to be legally qualified.

Read the full Supreme Court decision of 20th March 2019 here.

Outcome

The outcome of this challenge has immense significance for the future of the WRC and the Labour Court and will be watched closely and carefully by employers, employees, HR professionals, and lawyers.

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.

New Labour Court Rules, January 2019

New rules for the conduct of Labour Court hearings came into effect in January, 2019. Here is a link to them.