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
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
- Comment on the submission of the other party
- 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.