I generally begin my employment law course by offering students a hypothetical scenario. A partially sighted female employee, who works part-time, on a one-year contract, feels her employer has left her wages €100 short. After talking to the trade union she raises the matter with her employer. The employer becomes aggressive, uses foul language, shoves her to the ground (which is covered with oil, spilled earlier that day by her colleague), and tells her she is sacked. The employee feels she has some sort of claim against her employer; to which court or tribunal should she pursue this?
The answer is one that a lot of human resource professionals, union representatives and lawyers would struggle to give. In fact, the employee could potentially bring her claim to a variety of bodies; the Labour Relations Commission, the Equality Tribunal, the Employment Appeals Tribunal and the Labour Court, as well as to the “regular” courts.
In addition, her first port of call might well be to seek information from the National Employment Rights Authority (NERA), which, independently, may send inspectors to the employer’s premises to check for breaches of employment law.
Depending on which route(s) are chosen, the claim may be heard in private or in public, the outcome may be published or not, the destination of any appeal would be dependent on where the claim was first adjudicated, and the claim may be heard by a former trade unionist or human resources practitioner, a civil servant, a lawyer, or some combination of these.
Different aims
The system of resolving employment disputes in Ireland has evolved in a patchwork, ad hoc fashion, which potentially allows a multiplicity of forums (which have different aims and purposes, approaches and histories, and are staffed by personnel with very different backgrounds) to hear claims arising from the same set of circumstances, in the same workplace, involving the same parties.
Following the recent publication of the long-awaited Workplace Relations Bill 2014, this state of affairs looks set to alter radically (and employment law lecturers will need to find a new shtick). Minister for Jobs, Enterprise and Innovation Richard Bruton promised in 2011 to undertake a wide-ranging reform of the State’s employment rights and industrial relations institutions and, after an extensive consultation period, the 2014 Bill is the result. Reform was long-overdue; on that employers, unions, and employment lawyers were all agreed. Broadly, the Minister’s plans will be welcomed. Instead of the five bodies that currently exist, under the Bill all employment disputes will go to one body in the first instance: the Workplace Relations Commission (WRC). The WRC will take on the role of providing information on employment rights, currently performed by NERA, as well as housing all of the State’s labour inspectors. Appeals will go to a new, expanded, Labour Court. Decisions at both levels will be published on the internet, which should produce greater consistency and transparency in decision-making.
Procedures for taking claims under the various pieces of employment legislation will be standardised, so it will be clear how long an employee has to make a claim and how long either party has to lodge an appeal. In addition, the enforcement of tribunal awards will be beefed up. Frequently, it is enforcing an order that one’s employment rights have been violated, rather than actually getting the decision, that is most difficult. The old, often protracted, process of enforcement by the Circuit Court will be replaced by a more straightforward (and less costly) process through the District Court. All this is to be welcomed. Also welcome is the decision of the Minister not to impose fees on parties lodging a claim (for now, at least, as the option is open for the future), an initiative which has had a very damaging impact on access to employment tribunals in England. However, inevitably in a Bill so wide-ranging, there are concerns. These will no doubt be debated further before the Bill is enacted, but two can be mentioned here. First, the proposal to hold all Workplace Relations Commission hearings in private is regrettable. There may be instances when a private hearing is necessary (for example, if sensitive commercial or personal information will be revealed), but, as a rule, it is unclear why the principle of justice being seen to be done, with the popular legitimacy it implies, is to be restricted.
Extra legitimacy
Similarly, it was traditionally felt that having tripartite decision-making lent extra legitimacy to employment dispute resolution. Having claims adjudicated upon by an independent chairman (usually legally qualified) with two “wing members”, an employer representative and a worker representative (sometimes referred to as an “industrial jury”), imbued the process with “shop-floor common sense” and not just a strict focus on legalistic rights and procedures. The decision not to adopt this model at the Workplace Relations Commission is mostly driven by cost concerns. This is a pity; achieving the long-cherished goal of efficient, fair, and transparent resolution of employment disputes might be said to be priceless.
Prof Michael Doherty is head of the department of law at NUI Maynooth
