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
Categories
Unfair Dismissal Workplace Relations Commission

How to Make a Decision to Bring an Employment Claim to WRC or Not

Are you torn between bringing a claim to the Workplace Relations Commission (WRC) or walking away from the issue?

I meet employees on a weekly basis who face this decision. On the one hand they feel they have been treated unfairly, and perhaps unlawfully, in the workplace. But they face the tough decision to submit a claim to the WRC or even commence legal proceedings in the civil courts or walking away, forgetting about it, and putting the difficulty behind them.

It is not an easy decision.

Let’s take a look at some of the factors you will need to consider.

Justice

Many employees speak about getting justice and wanting to do something about what they see as the essential unfairness of how they have been treated by the employer. This appears to be a noble, principled position to adopt.

But if it involves a claim which will inevitably involve time, stress, and legal costs and the potential financial payback does not exceed the costs incurred it may be prudent to have a second think about bringing the claim.

Let me give you a simple example.

Let’s assume you have been dismissed from your job and you believe you have a strong case for unfair dismissal and you are anxious to pursue it.

Let’s assume, too, that you have been successful in getting a new job quickly after the termination of the old one and you have only been out of work for 3 weeks.

The Unfair Dismissals Act 1977 provides that if you succeed in your claim to the WRC the compensation you can be awarded is “financial loss”. Financial loss is essentially loss of pay or remuneration as a result of your sacking.

But your financial loss, assuming you start the new job 3 weeks later, is only 3 weeks’ wages.

Now, let’s assume you were taking home €500 per week, then your loss is €1,500. In these circumstances, if you are successful the WRC adjudicator can award you a maximum of 1 month’s salary which is approximately €2,000.

So, you might win €2,000 if you succeed but you will have to pay your own legal costs and it is extremely unlikely that your legal costs will not comfortably exceed €2,000. And then you must consider the stress of putting yourself through the whole process and the possibility that you will lose, in which case you are now out of pocket and your sense of unfairness and injustice has just increased significantly.

Now consider you do win but the employer has deep pockets and appeals the WRC decision to the Labour Court. You will have more legal costs and there is the possibility of your win at the WRC being overturned and you being further out of pocket.

Let me be clear: I am not trying to put you off, you may be perfectly happy to pursue your claim on a point of principle and let the cards fall where they may. There may well be an aspect of clearing or vindicating your good name and that is worth fighting for.

But you do need to think through the process from start to finish and weigh up the pros and cons and look at the potential outcomes.

For example, your case would be a completely different one if you were out of work for 6 months and had tried your best to get a new job. In this situation your financial loss will be 6 months’ wages so the financial analysis of your potential claim is radically different. To put it bluntly, it may well be worth a punt.

Justice v financial reality

You may have to weigh the justice or principle of your case against the financial reality and decide whether to pursue the matter or not. This can only be done by a cold headed analysis of the potential claims you have, the possible outcomes and remedies, and the probability of each outcome.

Conclusion

Bringing a claim to the WRC, Labour Court, or civil courts is an easy thing to do. But before you decided to do so you should consider the overall situation, what the potential outcomes might be, and the various steps along the way to the final conclusion, not just the first, easy step of submitting a claim.

You need to weigh it up like the moves in a chess game. Thinking only 1 move ahead is bound to end in disaster.

To assist with your decision, and to ensure you know what factors to consider, it’s a smart idea to get professional advice.

Categories
Employment Claims Unfair Dismissal

Constitutionality of Workplace Relations Commission (WRC) Challenged in High Court

Labour Court Appeals

The constitutionality of the Workplace Relations Commission (WRC) and Labour Court framework for adjudicating on employment disputes is being challenged in the High Court.

The Supreme Court has decided on 20th March 2019 that the employee, Mr Zalewski, is entitled to have his challenge heard in the High Court which had previously decided he did not have the necessary locus standi.

The outcome of this case in the High Court could be seismic.

Background

Mr. Zalewski had brought claims to the WRC: one for unfair dismissal under the Unfair Dismissals Act 1977 and one for non-payment of wages under Payment of Wages Act 1991. When Mr. Zalewski attended the adjudication hearing the employer-Buywise Discount Store Limited-sought an adjournment as a witness was not available. No evidence was heard.

When Mr. Zalewski attended with his solicitor for the new hearing date on 13th December 2016 he discovered that a decision had been issued by the adjudication officer. This decision was issued on 16th December 2016.

Judicial review in the High Court

Mr. Zalewski and his solicitor were understandably shocked and disappointed and made a protective appeal to the Labour Court and commenced judicial review proceedings in the High Court.

His judicial review application sought declarations that parts of the Workplace Relations Commission Act 2015, the Unfair Dismissals Act 1977, Payment of Wages Act 1991, and the powers and functions granted to adjudication officers in the Workplace Relations  Commission were unconstitutional as these powers constituted the administration of justice and the Constitution provides certain safeguards for the administration of justice in Ireland.

The WRC then, as part of an attempt to settle these proceedings, offered a new date for the hearing of Mr. Zalewski’s claims. He refused this offer and the WRC then asked the High Court to dismiss his application on the basis that he did not have locus standi.

The High Court agreed and dismissed his judicial review. However, he appealed to the Supreme Court who found that he did have the requisite locus standi and sent it back to the High Court to be heard. That is where the case lies now and the outcome has tremendous significance for anyone involved in employment law.

The employee’s case is that his claims will be dealt with by way of a statutory scheme-the WRC system-which is inconsistent with the constitution and the administration of justice in Ireland.

The first part of the challenge is the constitutional obligation for the administration of justice to be dealt with by a court, based on articles 34 and 37 of the Constitution.

Article 34.1 of the Constitution of Ireland provides:

1 Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

Article 37.1 provides:

1 Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.

Article 40.3 provides

3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.

The second part of his challenge is to do with the appointment of adjudication officers and the powers that are given to them, the fact that the hearings are in private, and that evidence is not taken on oath.

All of these matters go to the heart of a person’s constitutional right to fair procedures and natural/constitutional justice.

The grounds for the challenge also lie in the absence of any legal requirement of a legal qualification for an adjudication officer to be appointed, no requirement for the taking of sworn evidence during WRC hearings, the hearings being held in private, and the appeal going to a body-the Labour Court-which does not include persons required to be legally qualified.

Read the full Supreme Court decision of 20th March 2019 here.

Outcome

The outcome of this challenge has immense significance for the future of the WRC and the Labour Court and will be watched closely and carefully by employers, employees, HR professionals, and lawyers.

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.