Categories
Employment Claims

What Happens When a Party Does Not Attend a WRC Hearing?

Labour Court Appeals

I attended a WRC hearing recently with a client, the employer on this occasion, and the employee/Complainant did not show up to present his case and be heard.

For our side there was myself, my client and two witnesses and we had prepared thoroughly for the case.

My client and the witnesses had taken time off work and cancelled engagements to be there to meet the claim. I had blocked the day off in my calendar because it is impossible to know how long any case will take to be heard; it depends on a number of factors including

  • The adjudicator
  • The number of complaints
  • The number of witnesses
  • Any documentation to be considered
  • The complexity of the issues to be teased out
  • And so on.

In this case, however, I argued that the case should be struck out for want of prosecution. I argued that if the Complainant wanted an adjournment he could easily have requested one as notification of hearings usually give at least 3 or 4 weeks’ notice and this complainant’s representative advised the adjudicator that his “client” was out of the country.

We have not had a decision yet but I would be hopeful that my application that it be thrown out for want of prosecution will succeed.

My understanding is that unless there is some credible excuse or explanation, and provided the adjudicator is satisfied the non-attending party has been notified of the hearing, that the case will fail.

This is what happened in ADJ-00025136 involving a service worker and hospital and a claim under the Redundancy Payments Acts. The Complainant did not show up and the adjudicator was satisfied he was informed in writing of the date, time, and place of the hearing.

The Respondent was ready to present their case and the Adjudicator found “In these circumstances and in the absence of any evidence to the contrary I conclude that the complaint is not well founded.”

Preparing properly for all these WRC cases takes time and money and it is only right that a party who fails to attend, unless there is an exceptional reason, should be penalised. Perhaps there would be less “no shows” if the parties had to pay an application fee when making the claim, which fee could be returned once they go ahead with their claim and it is not an abuse of process and is not frivolous or vexatious.

Categories
Employment Claims

Employment Disputes and Claims-Where Do You Go in 2020?

Have you an employment issue that want to take further?

Maybe you are considering pursuing the matter on the basis that you feel your employment right has been breached? And you are wondering where you need to or what your options are.

Let’s take a look, shall we?

WRC (Workplace Relations Commission)

The vast majority of employment claims should be brought to the WRC (Workplace Relations Commission) in the first instance.

You do not have a choice when it comes to a statutory entitlement you may have-for example, a dispute concerning unfair dismissal, non payment of wages, failure to give you annual leave or rest breaks, and so forth. These types of claim must be brought to the WRC.

The WRC also deals with discrimination in the area of employment, the provision of goods and services, and trade disputes.

If you are not happy with the outcome of the WRC Adjudicator’s decision you can appeal this to the Labour Court.

So, the WRC is the venue for most employment disputes or claims.

Civil Courts

You can also bring some claims concerning your employment to the Civil Courts.

The first such claim would be for breach of contract and/or wrongful dismissal. This would cover a situation where your employment contract provides for 1 month’s notice for the termination of your employment and you are only given 1 week.

Clearly there is a breach of a term of the contract and you are entitled to sue in the Civil Courts for wrongful dismissal on the basis that you are entitled to 3 further weeks’ notice.

You must also travel a different route if you suffered a personal injury in the workplace and wanted to sue your employer for the loss and damage arising. Firstly, you would have to submit your claim to the Injuries Board.

If the injury is a physical one the Injuries Board will be able to assess the compensation that would reflect your injury an loss. However, if the injury is a psychological or psychiatric injury you will have to pursue this through the Civil Courts.

You will also have to go through the Courts if the employer or you does not accept the assessment value that the Injurie Board puts on the injury.

In rare cases you might also go to the Courts to seek an injunction preventing your dismissal, or some other relief relating to your employment. This scenario would not be your first port of call, however, and is expensive, especially if your trip to the High Court is unsuccessful.

If you felt a constitutional right was ignored or breached you would also go to the Civil Courts to vindicate your rights, including to your good name.

Other venues

There may be one or two other venues to pursue an employment matter but this would only be in very specialised areas-for example, if you are a doctor or nurse or solicitor you may be facing an application to have you struck off the professional register for your profession.

Conclusion

The vast majority of employment related claims must be firstly brought to the WRC. Some may be brought to the Civil Courts.

It is important from your perspective to be clear at the outset where you can bring your particular issue, the potential cost and outcomes/remedies.

Regarding costs each party pays their own costs at the WRC or the Labour Court. Going to Court, however, runs the risk of the Judge awarding all costs, for each side, to the winning party.

Categories
Employment Claims

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.

Categories
Employment Claims Workplace Relations Commission

3 Mistakes I Have Observed at the WRC/Labour Court in the Last 10 Months

irish solicitor

I have represented a good deal of clients in the Workplace Relations Commission and Labour Court over the last 10/12 months. In that time period I have observed what I consider to be 3 significant mistakes at those hearings.

You might learn something from them; I know I have.

Let’s take a look, shall we?

1. Asking too many questions in cross-examination

I acted for a client-an employee-in the WRC who had a great story to tell.

I took him through direct evidence and this was his opportunity to tell his story. My job was to ensure he got to tell all his story in the most sympathetic light to his case.

I did an average job but did leave out two very important questions. These 2 questions were vital pieces of evidence and left a couple of gaps in my client’s evidence.

I need not have worried for too long, however, because the HR representative for the other side (the employer) did my job for me when he was cross examining. He asked the questions that I had forgotten and my client took the opportunity with both hands and plugged the holes in his original evidence.

It is arguable that this was even better than if I had asked the questions because the fact that the answers came out in cross examination may have given the evidence even more credibility.

The big mistake? The HR representative for the other side asking too many questions.

Sometimes the best thing you can do in cross examination is shut up and sit the hell down.

Don’t pay any heed to Rumpole of the Bailey setting a fiendishly clever trap for a witness; don’t mind the cross examination scenes you see in TV crime dramas or Top Gun when Tommy Lee Jones cross examines Tom Cruise.

These pieces of storytelling or theatre are just that and should be recognised as such.

The lesson? Don’t ask questions in cross examination for the sake of hearing your own voice; sometimes the best thing you can do is shut up.

2. A stray document

Another mistake I encountered was being given a bunch of documents by the representative for the other side and finding a document-a letter-which was of immense value to my client’s case and which we did not know existed.

And even if we knew it existed we would not have had any right to it as the other side could have claimed it was entitled to legal privilege.

But here it was amongst a huge bunch of the usual stuff like a diamond in a pigsty.

The value of the document was that it showed the other side-the employer-was told something by a professional advisor, did not act on it and this failure to act ultimately led to my client’s job loss.

This went to the heart of our claim for unfair dismissal.

The mistake? We should never have know of the existence of this document, never mind come into possession.

3. Failing to settle a case

This case involved a number of employment related claims at the WRC (Workplace Relations Commission). But there was also a personal injury claim in being.

The HR representative for the other side (the employer) recognised that our case was a very strong one and the signals from the Adjudicator was that they would be well advised to talk to us with a view to settling. We were well ahead.

We took a break and negotiated for a little bit and there was not a huge difference between us in the end about the money stuff but we did not agree.

The mistake, in my view, was the the HR representative failed to recognised that if the case was settled it would have been on the basis that all claims arising from the employment were settled.

This would have included the Personal Injury claim. This is very significant.

This would have been a great piece of work for his client, the employer, and would have given him a great deal of comfort and certainty. Personal injury claims, if they go against you, can be expensive.

But the HR person seemed unable to recognised this value, or did not have the competence or confidence to do so.

A relatively small amount of extra money would have settled the whole shooting match-that is, all claims arising from the employment, including the personal injury claim.

Instead the hearing went ahead and we won a decent award. And the Personal Injury claim is still in being and will be pursued.

Conclusion

We all make mistakes but the best thing we can do is learn from them, file away the lessons, and move on with confidence that we will not make the same mistakes again.

Hopefully I will avoid these 3 mistakes that I came across in the last 10/12 months.

Categories
Employment Claims Unfair Dismissal

The Avoidable Fears and Panic of Small Employers-3 Illustrative Cases

Are you an employer? Have you been stressed and anxious about an employment issue recently?

I have met a number of employers in the last year or so and I had a great deal of sympathy for them.

Let me explain.

It’s very easy for you as an employer to make mistakes in relation to your employment law obligations. One of the obvious reasons for this is the massive body of employment law legislation on the statute books.

If you throw in EU directives and regulations and statutory instruments and recommended workplace policies/procedures and common law and decided cases and the constitution you would be forgiven for not knowing whether you were coming or going when an employee makes allegations or claims against you.

I have recently encountered a number of cases where employers eventually contacted me for advice and had they contacted a solicitor earlier in the day they could have saved themselves a lot of money, anxiety, and stress.

Referring a complaint to the Workplace Relations Commission

The first case involved a small family owned business who were, like most small business owners, flat out doing what they did: making stuff and selling it. Out of the blue they received communication from a trade union on behalf of a long standing employee. The letter set out a number of grievances going back many years and demanded a meeting with the trade union official and their member employee.

The employer, acting in good faith and trying to ‘do the right thing’, agreed and a number of meetings were arranged. These meetings were only moderately successful and involved the employee complaining about many issues, mostly trivial matters frankly, going back many years.

A number of meetings took place involving management of the company and the trade union official and employee. These meetings were time consuming and necessitated the preparation and issuing of minutes and the focusing of valuable management time.

Ultimately the meetings failed to resolve the issues and the employee, with the assistance of the trade union, submitted a claim to the Workplace Relations Commission. Once the employer received the formal letter from the WRC advising of the complaint he immediately panicked and embarked on another round of meetings to try to resolve the issues.

Schedules had to be arranged to facilitate all concerned and ultimately proved to be a waste of time as the employee was still not satisfied.

This whole episode caused great anxiety and stress to the owners of this small business who were anxious from the outset to deal with the problem fairly and in accordance with the law.

What the employer could have done

Firstly, the employer should have obtained professional advice.

If he did he would almost certainly have been told that the issues raised by the employee were grievances or complaints but not breaches of the employee’s rights. Therefore nothing unlawful had been done and there was no cause for panic.

Secondly, the employer could have given the employee a copy of the staff handbook and directed his attention to the grievance procedure in the handbook and told him he was obliged to use the internal grievance procedure to try to ventilate his complaints and have them dealt with.

He would also have been told that the outcome of the grievance procedure could be appealed if the employee was still not happy but ultimately the decision of that appeal was final.

Thirdly, if the employer sought professional advice early he should have been told that the complaint that was submitted to the WRC was a ‘trade dispute’ under the Industrial Relations Act, 1969 and the employer could simply refuse to have it investigated by the WRC by ticking a box on the letter he had received from the WRC.

A lot of stress and anxiety, and expenditure of management resources, would have been avoided, not to mention money saved.

Alleged breach of contract

The second case involved an employee going to a solicitor and making a wide number of allegations about non payment of wages for extra hours allegedly worked, holiday entitlements, public holidays, failure to pay minimum wage, a stress related injury as a consequence of the workplace, and so on.

The threatened legal action contained in the solicitor’s letter on behalf of the employee covered all of the above issues going back many years and demanded a significant payment to ‘settle the matter and all claims arising from the employment’.

It was a real ‘mixum gatherum’ of a demand letter and caused the recipient small business owner a great deal of anxiety and stress. She was an elderly lady who had employed this employee for over thirty years and in addition to the stress and worry at receiving such a letter was also personally disappointed on a human level for she felt she had been very fair with this employee for three decades and was taken aback to see the relationship go downhill.

The small business owner, an elderly lady who has retired from the business which was now run by her son, was incredibly upset by the whole affair.

The employee who was making this claim was at an age when many people would consider retiring and it appeared that this claim may have been one motivated by a desire to get recognition for the years of service, one way or the other.

On the face of it the demand by the employee for an eye watering amount of money was intensely worrying. However, when the issues and claims were stripped down to their essence the situation was not nearly as bad as first appeared.

Firstly, I explained that even though the employee was claiming a stress/psychological injury as a result of the situation in the workplace it is very difficult to successfully succeed with such a claim. I told her son that the employee would need to prove a number of things:

  1. That he had suffered an identifiable psychiatric/psychological injury
  2. That the injury suffered was as a result of the negligence of the employer
  3. That the injury was forseeable and the employer had failed to act as a reasonable employer would.

In other words if the employee had only suffered ‘ordinary stress’ and not a recognised psychiatric injury he would be unlikely to succeed with a personal injury claim. Courts recognised that work is generally a cause of stress. It is not play or entertainment or recreation.

Moreover, bringing a personal injury claim would require expensive medical reports and take quite a while to get to court for hearing and incur significant legal costs with an uncertain outcome thus leaving the employee with a touch decision to make.

In short when the rubber hit the road this ‘stress’ claim may not even get off the ground.

With regard to the other claims concerning holiday pay, public holiday entitlements, or non payment of wages, for example, these would need to be submitted to the WRC (Workplace Relations Commission) within 6 months of the alleged breach of the relevant act.

Thus, the WRC would not be able to deal with the entire value of his claim, assuming there was merit in it, as he would be ‘out of time’ for the bulk of what he was claiming.

This six months rule would not apply if he sued for breach of contract in the Civil courts and he could go back 6 years. However, this would involve legal proceedings for breach of contract in the civil Courts and with the amounts of money involved it may not actually be worth the risk in the end.

Yes, if he won he would almost certainly get his legal costs awarded by the Court, however if the claim was a relatively small one would it be worth it? Would he have the evidence to support all aspects of his claim? Would the employer have a good defence and/or better records? And he would be statute barred in respect of the parts of his claim which were over 6 years old.

Therefore when this particular claim, which commenced with a demand for an eye watering sum of money from the employer, was stripped down to its bare essentials it was not nearly as worrying or stressful for the employer.

Nor an attractive money pot for the employee.

Unfair dismissal

Another employer contacted me in a lather of sweat about an unfair dismissal claim that is coming up. She checked online and discovered that the potential award in an unfair dismissal claim is up to 2 years’ salary.

However, the legislation allows the award of financial loss to a maximum of 2 years’ salary and this level of award is extremely rare.

In her particular case, however, the employee had got a new job within 1 month of the dismissal. Therefore the maximum financial exposure for this claim was 1 month’s salary.

If she calculated how much this would amount to, and the fact that she could put up some sort of defence to the claim when the hearing was held, she would have seen that it was not something that should cause a great deal of anxiety.

And she could always try to settle it in advance of the hearing and avoid the time and cost involved in attending a WRC hearing, especially if she wanted to have legal representation. I would have had to advise her, however, that the cost of defending the case using a solicitor might actually exceed the potential award to the employee.

So, if she wanted to defend it she could consider doing it herself and taking her chances.

Normally I would not recommend this approach but if an employer has a potential exposure for a small award that is not likely to exceed the cost of legal representation then I would advise her to this effect and let her decide.

Conclusion

You will see from these three examples that massive fear and worry can be caused to decent employers if they do not obtain sound professional advice from the outset.

Yes, employers must afford employment rights to their employees and treat them decently, with respect, and lawfully. And if they don’t they will be brought to account. Quite right, too.

But unnecessary fear or stress to employers caused by bad or no advice can be avoided if they seek professional advice early in the day from someone who is familiar with the ins and outs of employment law in Ireland.

Otherwise they will experience worry and anxiety that may be wildly out of proportion to their potential exposure in the claim(s) they are threatened with.






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