THE DEPARTMENT of Jobs, Enterprise and Innovation has published a Blueprint to Deliver a World-class Workplace Relations Service which proposes a two-tier structure consisting of a body of first instance to adjudicate on all complaints with a single factual appeal. The blueprint envisages that all of the initial adjudicative procedures undertaken by the Equality Tribunal, Rights Commissioners, the Employment Appeals Tribunal (EAT) and the Labour Court will be undertaken by Workplace Relation Commission Adjudicators with a single appeal to the Labour Court. Further appeals may go only on a point of law to the High Court.
The proposed legislation will result in the winding up of the EAT, and it is envisaged that all of the work of that body and the other additional work of the Labour Court can be undertaken by increasing its make-up from three divisions to four with one or two additional chairpersons.
Despite the fact that individual employment disputes such as unfair dismissal rank among the most serious matters that individuals will ever litigate, the proposal suggests that all of these matters will be determined, at first instance and on appeal, by bodies where the adjudicators will have no requirement whatsoever that they be qualified in law. Complex legal issues will have to be determined involving the interpretation and application of Irish and European law.
The blueprint bizarrely requires that the registrar be an experienced and qualified lawyer. His/her role is for the management of complaints in an effective and efficient way. Why that person needs to be a lawyer when none of the adjudicators requires such a qualification is not understood. An employee who loses his job or an employer who is accused of discriminating against an employee will not have their dispute determined or reviewed by any judge or legally qualified person other than during a final appeal in the High Court.
There must be a very serious doubt that the proposals comply with Ireland’s obligations under the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.
The Labour Court cannot be criticised and indeed must be praised for the significant work that it does in resolving collective industrial relations disputes. The skills, however, required for adjudicating on such disputes are significantly different than those which are required to adjudicate on individual disputes involving complex issues of law.
The blueprint, if implemented as published, will create a number of quite extraordinary situations including the possibility that a claim will be rejected, without hearing, if it is deemed to be out of time. It also proposes that the Labour Court might examine whether a claim is “sufficiently meritorious” to proceed to an appeals hearing. The constitutionality of this proposal must be questionable.
The need for reform is undoubted. The present multi-forum system with inefficiencies and unacceptable delays must be changed. But the suggestion that all of the work currently undertaken by the EAT can be absorbed into the Labour Court by the establishment of, in essence, one additional division to the present three is questionable.
In 2010, the Labour Court received a total of 1,452 referrals. It completed 1,086 cases in that year. The EAT in 2010 had a total of 8,778 cases referred to it and it disposed of 6,064. It is impossible to envisage the Labour Court, even with an additional division, dealing with the EAT volume in addition to all its other work.
The blueprint is, in my view, fundamentally flawed and will not deliver the necessary improvement in the current unacceptable and somewhat chaotic process. The blueprint suggests some procedures which are constitutionally doubtful and in this regard it is well to remember that the Labour Court itself on its website confirms that it is not a court of law.
Under these proposals it will be, and will in fact be the only court of law dealing with factual disputes of huge importance to individual employees and employers. Irish citizens are entitled to have disputes concerning one of the most significant relationships, that of employer and employee, determined by an appropriately qualified and independent tribunal. Altering the entire structure of the Labour Court will not only not deliver the necessary reforms but could have a significant adverse effect on the success of that body in its industrial relations role.
Tom Mallon is a barrister and chairman of the Employment Bar Association of Ireland. This is an abbreviated version of comments made by him at the launch of the Arthur Cox Employment Law Yearbook 2011