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

The Towering Fear of Losing Your Employment Case-Don’t Make This Mistake

Michael carried his workplace grievances around with him like a man dragging a clanking chain.

It all started about 12 months ago when his employment was terminated unexpectedly. Michael was shocked and firmly believed he was unfairly dismissed. 

So he submitted a claim to the Workplace Relations Commission under the Unfair Dismissals Act 1977. 

Michael read somewhere that it was a good idea to make a data request of the employer under the Data Protection legislation/GDPR. He had read about a case for constructive dismissal had been won because the employee had made a data access request and it uncovered email evidence of the intention to terminate the employee’s employment. The employee was awarded €50,000(Data Access Request Uncovers “Smoking Gun” Evidence to Win €50,000 Constructive Dismissal Case).

But when Michael received his personal data from the employer he believed it was not complete-there was stuff missing. So he made a complaint to the Office of the Data Protection Commissioner. 

He was then deeply unhappy with the way the Office of the Data Protection Commissioner dealt with his complaint and commenced legal proceedings against that office.

By the time Michael came to visit me he had also submitted a claim to the Injuries Board because he believed he had suffered a psychological or psychiatric injury as a consequence of the anxiety and stress that the dismissal from his job had caused.

His WRC hearing is coming up next week and he is getting nervous. Nervous he will lose and his sense of grievance and wrong will be deepened even further.

Now he sits in front of me and I am thinking hard about the best way to break it to him. By “break it to him” I mean my view that apart from a towering sense of grievance the only real cause of action he has is the unfair dismissal claim.

And I truly believe his prospects with this claim are less than 50/50. Because there is a good chance the employer will be able to prove there were “substantial grounds” to dismiss. (There had been a few disciplinary issues over the years with a live warning on his file).

Fear of picking one claim

I meet quite a substantial number of persons who are deeply aggrieved with the unfair way they believe they were treated by their employer. 

But when they must pin their colours to the mast and put their claim in front of a third party such as a Workplace Relations Commission adjudicator they are afraid. Afraid of losing. Afraid that the third party will not see the situation in the same light as them.

So they search around. They search around for other allegations and claims to make because they want to win and get one-something-over on the employer.

Because they want an “each way” bet, just in case their claim fails. They are confident, of course, but just in case..

The essence of the claim

When I look at the facts, however, I see that when the claim is stripped down to its essence the issue to be decided will be a simple one: was the termination of the employment a discriminatory dismissal?

If Michael can prove this he wins. If he cannot, his claim is bound to fail. All the other stuff will be a sideshow, an attempt to nail the employer with something. But that’s all.

Avoiding the stark truth

Michael, like many employees I meet, will raise all sorts of spurious, tangential grievances and complaints because they want to avoid the stark truth. The truth that their claim may fail and it will hurt.

The third party

No matter how strongly you feel about the way you were treated in the workplace, regardless of your dispute with a property owner or a neighbour or anyone else for that matter, ultimately a third party will decide on the merits of your case.

This third party may be the Workplace Relations Commission, the Labour Court, any of the Civil Courts (District, Circuit, High, Supreme). It doesn’t matter-the bottom line is somebody will give a binding opinion on whether your case wins or loses.

Conclusion: be honest with yourself

You need to accept that you may win, or you may lose, but you need to be honest with yourself. Let the case or claim stand or fall on its merits, its facts, the law supporting it.

Don’t waste your time trying to concoct a case if none exists. You owe it to yourself to let a decision be made, if that is what you want, give it your best shot and appeal if necessary.

Then, accept it and move on.

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

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