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.






 FREE REPORT FOR EMPLOYERS & HR

9 Simple Money Saving Tips for Irish Employers(and regular employment law tips by email)

Sign Up Below

New Graphic

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.

Reinstatement of Dismissed Employee-A Warning for Employers

unfair dismissal-1

Are you an employer?

If you have dismissed an employee you are almost certainly aware that a successful claim against you by your former employee can lead to an award of compensation of up to 2 years’ salary.

But did you know that there are 2 other remedies that can be awarded if the employee’s claim succeeds?

Yes, the Workplace Relations Commission adjudicator, in an unfair dismissal hearing, can also order that the employee be reinstated or reengaged. This can be the worst possible outcome for some employers.

It is not a frequent outcome to an unfair dismissal claim and more often than not the employee will only tick the box on the WRC claim form seeking compensation. If this is the case then the adjudicator has no decision to make once he decides the employee has been unfairly dismissed.

But sometimes an employee will seek reinstatement to their old position. He may do this for tactical reasons-for example, it may encourage the employer to attempt to settle the claim before it goes to a hearing at WRC for fear of losing.

On other occasions, however, by virtue of the nature of the industry or specialised nature of the job, the employment prospects for the dismissed employee may be poor. If this is the case the employee may be perfectly happy to resume his old job, or an alternative position in the same organisation, which can be an equally bad result for the employer, who would be happy to never see the employee again.

This can cause a major headache for the employer who will doubtless argue that the relationship between employer and employee has broken down and there is a lack of trust and confidence between the parties and they should not be forced into resuming the old relationship.

This is a widely used and accepted argument. But it’s not always successful.

A Banker v A Bank Adj ADJ-00001266

The WRC adjudicator, on 28th March, 2018, made an order for re-instatement in this case involving a banker versus his former employer, a bank. The banker, a trader, was dismissed for gross misconduct and brought a claim for unfair dismissal.

Without going into all the details (there is a link below for full details of the decision) the decision of the adjudicator, Mr. Kevin Baneham, was that the unfair dismissal claim was to succeed due to the imperfections and flaws in the bank’s disciplinary procedure which led to the dismissal. The next step to be decided was the appropriate redress for the employee.

The redress sought by the banker, once he succeeded in his claim, was re-instatement. The adjudicator agreed that re-instatement and re-engagement were possible awards as the banker was a popular employee whose performance appraisals were good and was a good team player.

Mutual trust and confidence/disharmony

The bank, however, argued that re-instatement was not appropriate as it could lead to a poor relationship between the parties in the future, there would inevitably be disharmony, and the relationship of mutual trust and confidence between the parties was shattered. The adjudicator did not agree.

The adjudicator had regard for the fact that the banker operated in a strictly regulated environment and industry and a dismissal would possibly be fatal to obtaining alternative employment in such an industry, given the relatively limited options. For this reason the adjudicator ordered that the employee be re-instated as it was ‘just and equitable in this case’.

For the reasons provided in this report, I find that the complaint of unfair dismissal is well founded and, pursuant to section 7(1)(a) of the Unfair Dismissals Acts, I order the re-instatement by the respondent of the complainant in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.

You can read the full decision in this case here: ADJ-00001266

Lessons for employers and employees

If you are an employer ensure you or your advisor checks the WRC complaint form to see if the redress sought by the employee includes re-instatement or re-engagement.

If you are an employee you may consider nominating those options as redress you are seeking as it may put some pressure on your former employer to settle the case before it goes to hearing, for fear you will win and an order for re-instatement is made.

Warning: When Legal Argument and Syllogistic Reasoning is Not Enough to Win Your WRC Case

legal reasoning

Let’s call a spade a spade.

If you are at a WRC hearing and you have a well constructed legal argument prepared, based on syllogistic reasoning, you can be easily set back on your butt.

First, let me explain what syllogistic reasoning is.

Syllogistic reasoning involves a logical argument based on deductive reasoning. It involves

  1. A major premise or proposition
  2. A minor premise or proposition
  3. A conclusion.

Let me give you an example.

  1. All men will die.
  2. Mick is a man.
  3. Mick will die.

In this example you can reasonably conclude from the major and minor premise that Mick will die one day.

The major premise is generally the rule, the minor premise is the facts of this particular case. And then you have reasonable, logical conclusion based on applying the rule to the facts.

This is how many legal arguments will be constructed. Let’s take a real world example in the area of employment law.

Let’s accept the major premise that to terminate someone’s employment without any reason or notice after they have 12 months service is unlawful because it constitutes an unfair dismissal.

And let’s say the facts of a case are that this is precisely what happened Maureen-she was fired one Monday morning by her boss, Terry, without any explanation and told to pack her things-then you can reasonably conclude that Maureen has an extremely strong case on the grounds of unfair dismissal.

Let’s assume you are Maureen and you go along to the WRC hearing and represent yourself in your unfair dismissal claim. Then a strange thing happens.

Terry starts giving evidence and explaining what happened and breaks down uncontrollably. Terry tells how his wife was diagnosed with cancer two weeks before the incident, he wasn’t himself, did not know what came over him, the Revenue Commissioners carried out a raid on his garage on foot of a malicious complaint from a former disgruntled employee, and his dog died.

The WRC adjudicator just happens to be a middle aged man around the same age as Terry and his wife, coincidentally, was diagnosed with cancer 9 months before. The adjudicator is visibly shaken by Terry’s story and has a great degree of sympathy for him.

In fact, he adjourns the hearing for 15 minutes to gather his thoughts, and let Terry compose himself. When the hearing resumes the adjudicator turns to you and suggests that settling the case might be in your best interest.

What would you do?

**********************************************************

This story has exaggerated facts to illustrate a point. No matter how strong you think your legal argument is a strong emotional story can be hard to overcome, especially if two things are present:

  1. If the adjudicator has a stronger feeling of empathy with one of the parties
  2. There is a conflict of evidence between the parties.

We know, for example, that when an adjudicator at the WRC or a Judge in court is faced with a conflict of evidence he/she will have to choose which version of events he/she prefers.

And that may well turn the case in favour of one party or the other. The Adjudicator decision may well contain a line, “there was a conflict of evidence between the parties and I preferred the evidence of xxxx”.

Therefore no matter how strong you feel your case is and no matter how well you have constructed your legal arguments you may run into a situation where the outcome is far more unpredictable than you expected.

Throw in the fact that each WRC adjudicator is entitled to conduct the hearing however he chooses and it can be a frustrating and unpredictable process. For example, I have been involved in hearings where cross examination of the main witness was not permitted; in other cases it was actively encouraged.

Sometimes, no matter how strong your case, the smart thing might be to retreat from an “all duck and no dinner” approach, and settle it. Especially when you feel that the other party’s version of events is-rightly or wrongly-more likely to be accepted by the adjudicator.

Conclusion

Much of the skill and wisdom involved in any case is required for this type of decision, not necessarily or solely to prosecute or defend the case based on the legal reasoning.

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