As the new workplace relations system is now in operation for 20 weeks as of last Friday, we take a look at some practical lessons learned through our experiences of complaints heard at first instance by Adjudication Officers, and of dealing with the Workplace Relations Commission (“WRC”) to date.
Procedures published by the WRC, which set out the practices of the WRC and the requirements on the parties to a dispute at first instance (the “Procedures”), have been the subject of much debate and criticism. This is primarily on account of the fact that the Procedures have no statutory footing and, therefore, a failure to comply with the Procedures cannot be enforceable.
The Procedures provide that a party on whom the burden of proof rests in employment equality and unfair dismissal cases must submit a statement to the WRC setting out the details of the complaint within 21 days of the date of the Adjudication Officer’s request. The Procedures go on to state that an Adjudication Officer hearing a complaint may draw an inference from a failure by such a party to produce information in a timely manner. In practice, however, we have not seen any Adjudication Officer disallow a statement that has been submitted outside of the 21 day time limit, and we understand anecdotally that, in fact, many statements have been accepted by Adjudication Officers on the actual day of the hearing, without any difficulties. In addition, any delay in submitting a statement will not prejudice the hearing date for the complaint. This is not to say that a party is encouraged not to submit a statement within the requested timeframe. Indeed, it may constitute strong grounds for the other side to seek an adjournment of the hearing, in circumstances where the relevant information has not been provided in advance.
Adjudication Officer Hearings
Adjudication Officers have a broad discretion in terms of how a hearing is conducted and, in our experience, there appears to be no uniform approach taken by Adjudication Officers during hearings, or indeed with the detail they will require in advance. For example, some require confirmation of the number of witnesses, whereas others raise no such queries. This is likely due to the fact that Adjudication Officers of the WRC come from a variety of backgrounds, with different experiences. Therefore, it is possible for the same or a similar set of facts to be dealt with in a very different manner by separate Adjudication Officers.
Timing and Notice of Hearings
The practice whereby cases are being set down for hearing before an Adjudication Officer within approximately six to twelve weeks from the date the case is referred to the Adjudication Officer seems to be continuing. In addition, the list of legacy cases before the Employment Appeals Tribunal ("EAT") is decreasing, and the waiting period for such cases to be listed for hearing now appears to be reduced to approximately six to nine months. In our experience, notification of hearings before the EAT and the Adjudication Officers are being issued in or around two weeks before the hearing.
No decisions of an Adjudication Officer have yet been published on the WRC website. However, such decisions are expected to follow a standard template which sets out the facts, whether those facts are agreed or disputed, and the legal reasoning, so that there is consistency in the decisions. If followed in practice, this will be a significant change from previous Rights Commissioner decisions in particular.
It is expected to take a further few months before the Labour Court will start to feel the impact of the new system on its workload.
In terms of practice and procedure in the new Labour Court, there appears to be a greater emphasis on case management. Where the circumstances necessitate it, a case management conference will be scheduled with the Chairman or the Deputy Chairman of the Labour Court, sitting alone, in order to, for example, identify or narrow the issues surrounding the appeal.
Notices of Labour Court hearing dates are being issued between four and six weeks in advance of the hearing, which gives the parties a much greater opportunity to prepare than at the Adjudication Officer stage.
A further practical point to note is that the Secretary of the Labour Court will swear in all witnesses in advance of the hearing commencing. This approach facilitates the Court asking questions of all witnesses present during the hearing, and any responses will, therefore, be given on oath.
We will continue to review and provide updates as the new system progresses.