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.

You may also be interested in

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. Presumably the Adjudicators have a certain amount of discretion, but I have been slightly taken aback by the different approaches of individual adjudicators.

I would have had the understanding that the tone of Rights Commissioner, Employment Appeals Tribunal, and now WRC hearings could be described as informal, in comparison with the procedures in the Civil Courts.

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
  1. 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.

2. 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.

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