The Workplace Relations Bill 2014

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Ireland is currently undergoing ‘a challenging social and economic climate for families, the employed and the unemployed’.[1] The rate of unemployment is still, unfortunately, very high, despite dropping to 11.7% from a peak of 15.1% in 2012.[2] This uneasy atmosphere leads to an increase in litigation, with more and more employees pursuing claims against their employers. Unfortunately, due to the structure of Irish employment law, litigation in this area can often be a costly, lengthy, and inefficient process, for all parties involved. In fact, a survey undertaken by Dr Barry in 2011 shows that 96 out of 103 practitioners believe that the current system is in need of a complete overhaul.[3] The Workplace Relations Bill, 2014 proposes to significantly change the structure of Irish employment law. Based on the “Blueprint to Deliver a World-Class Workplace Relations Service” (published in April 2012 by the Department of Jobs, Enterprise and Innovation), this Bill, if enacted, will alter the way disputes are resolved between employers and employees in this jurisdiction. The overarching themes of this Bill seem to be about giving priority to speed and simplicity – this reform is very much welcome, especially considering how convoluted Irish employment law has become. While there are an overwhelming amount of positive changes and tweaks in this Bill that will change the resolution of disputes for the better, certain aspects of the Bill could potentially have a negative impact on the system, mostly due to a lack of detail. In order to assess the potential significance of the Bill, it is necessary to first examine its aims. Overall, according Mr Richard Burton, TD, the goal of the Bill is to create a ‘world-class workplace relations service’.[4] The Explanatory Memorandum states that that the Bill will ‘provide significant benefits for its users and society as a whole. The focus will be on resolving the workplace disputes as quickly and inexpensively as possible’.[5] Merging of Existing Bodies According to Cox, Corbett and Ryan, ‘a key distinguishing feature of Irish employment litigation is the multiplicity of different for a in which claims may be brought’.[6] This is huge problem in the current system, one that is unique to Ireland, for numerous reasons that will be examined below. Currently, there are several bodies that deal with workplace relations. These include the Rights Commissioner Service (LRC), the National Employment Rights Authority (NERA), the Equality Tribunal, and the Employment Appeals Tribunal (EAT). The old system is potentially unfair due to the large number of these bodies, some with similar functions, making it easy for employees to become daunted, as it is unclear which of the bodies suit their particular claim. This leads to ‘forum shopping’, which requires legal advice – yet another cost on top of the litigation. Perhaps even more troubling is the fact that if the claims are directed to the wrong forum, or under the wrong statute, they can become statute-barred before the error of the action is discovered.[7] A good illustration of some of the difficulties multiplicity of fora poses to dispute resolution can be seen in the recent case of Cunningham v Intel Ireland Ltd.[8] This case started out as a discrimination claim against Intel. The litigant in question held a senior role within the company, and claimed that she was discriminated against because of her return from maternity leave. The worker brought an action to the Equality Tribunal (for gender discrimination), as well as a separate action to the High Court (for personal injuries sustained due to her treatment in the workplace). The employer argued the High Court action should dismissed, as it would be unfair to have the same case argued twice. The Courts agreed, citing an old common law rule from the case of Henderson v Henderson,[9] which states that as a matter of public policy, a defendant should not be vexed with having to defend a case in several places. This is extremely harsh, and potentially even infringes on the right to court access. The system is also unfair for employees in the sense that it is possible for several appeals to be heard in a single case, greatly prolonging the proceedings. An extreme example of this can be found in the case of JVC Europe Ltd v Ponisi[10], a case in which an unfair dismissals claim was heard four times, with Mr Ponisi succeeding each time. Mr Justice Charleton referred to this as ‘cumbersome and redolent with potential for unfairness’.[11] On the other hand, from the point of view of the employers, ‘employers may often find themselves having to fight a number of fires in different forums all emanating from the same dispute’.[12] Overall, the system has been described as ‘a chaotic and poorly functioning regime’.[13] The Bill, if enacted, will merge all the existing bodies into a single two-tier system, an action that will potentially get rid of a lot of these difficulties. For the first instance claims, the Workplace Relations Commission (WRC) will be established. Appeals will be brought to an expanded version of the Labour Court. This new system is bound to fix a multitude of problems concerning the multiplicity of fora described above, and is a vast improvement over having four different bodies governing decisions in a similar area. In fact, this system has come recommended by many – according to a survey undertaken by Dr Barry, 80% of employment law practitioners support the two-tier system.[14] The two-tier system gets rid of the ‘forum shopping’ problem for disputes, as it means that there is only one point of access for employment law litigation. The new system also solves the problem of having such a large number of opportunities by appeal by restricting appeals only to the new Labour Court (s.44), with only one more opportunity to appeal to the High Court, but only on a point of law (s.47). This will ensure that all disputes are efficiently dealt with. Labour Court also promises to be efficient due to the new appeal period (42 days, s.44). The only issue is, again, the expanded scope of potential areas of law which will be decided on there. This is a problem, considering the old Labour Court was mostly specialised in industrial relations issues. There is, however, a slight problem in terms of the logistics of merging all these bodies into one. Dr Barry cites NERA’s Annual Report 2013, which states that at the moment, NERA’s Workplace Customer Relations Service processes complaints to the Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal, and the Labour Court – this amounts to 15,558 complaints for the year, which is a staggering 43 complaints per day.[15] After the merging of the bodies, this task, which at the moment merely directs complaints to the various bodies, will become much more complex, considering that the complaints must now be directed to the various services between the WRC. If this process does not go smoothly, then there is the potential for workplace disputes to remain just as slow-paced as before. Kevin Duffy, the Labour Court chairman, has recently stated that the changes will ‘present many challenges’, and that the ‘overall architecture will be different’, as well as the fact that he anticipates ‘a 56% increase in [their] workload’.[16] Dr Barry suggests some practical methods for ensuring a smooth transfer, such as ‘strategic preparation for case-transfer’, the development of ‘a proper case management system to include an online portal’, as well as the ‘proper training of staff’.[17] Merging the bodies also alleviates another problem the previous system had, which is a lack of consistency in between the judgments. Some practitioners that participated in Dr Barry’s survey referred to above mentioned that Rights Commissioners ‘seem to forget that they are there to make an unbiased decision on the facts’, and that in the EAT, ‘it really is a lottery and almost identical cases go either way’. By merging the bodies into one, it will be easier to maintain an equal standard above the board and make sure that decisions remain consistent. There is also the concern that merging the existing bodies is merely a re-shuffling of existing bodies, meaning that the change might not be as dramatic as it seems on the surface level. Costs The Bill makes no provision as to the possibility of being liable for legal costs. If it is possible for the losing party to be liable for the costs of the winning party, it could prove to be a huge imbalance between the employer and the employee, as due to a lack of funds, an employee may be more apprehensive at attempting to seek justice through the new system. Dr Barry recommends including a liability for costs for vexatious claims, or those with no reasonable prospect of succeeding[18], which is the current method in the UK Employment Tribunals. This will help strike a balance between access to the courts and stopping time-wasting through vexatious claims. Early Dispute Resolution and Mediation One of the key changes proposed by the Bill is the introduction of early dispute resolution. According to ss.36-40, there will be three new services introduced for resolving disputes in the WRC – these will be provided by case resolution officers, mediation officers and adjudicators.[19] The former two will be in charge of facilitating ‘the resolution of disputes where possible at an early stage and without recourse to adjudication’.[20] This is relevant for less complex disputes, for instance, ‘disputes as to whether an employee has receive information on Terms of Employment or a payslip’.[21] The WRC Director General can suggest the parties to make use of the Case Resolution Officer or the Mediation Officer, but the parties can reject this suggestion and instead opt for the Adjudication Officer, who will hold a more formal hearing. Dr Barry makes the argument that having two split positions that, for all intents and purposes, have the same goal, would be wasteful. The positions of Case Resolution Officers and Mediation Officers are indeed quite similar, and differ only in terms of the complexity of the issues that they deal with. This is why he argues for merging of the two positions, basing his arguments on example services that already exist in the UK such as the Advisory, Conciliation and Arbitration Service’s (ACAS) Early Conciliation Service. He also raises the issue with the Adjudication Officers, who will be former Rights Commissioners and Equality Officers from the Equality Tribunal (s.40(3)). The issue is that they may not have enough experience with some of the complexities of other areas of employment law that they will have to examine over the course of their work (s.41(4)), which could lead in some inaccurate judgments. There is also little detail as to how these Officers, with so many responsibilities, will be appointed. Another welcome change is to do with mediation – whereas previously, formal mediation was mostly available to claims under the Employment Equality Acts,[22] the Bill proposes to offer mediation for all employment rights disputes (s.38). Mediation, as well as other forms of Alternate Dispute Resolution, play an increasingly important role in legal matters. It has been stated that it “offers a means of bringing workplace justice to more people, at lower cost and…it also helps to clear the backlog of cases at statutory dispute resolution institutions and is thus assisting government agencies to meet their societal responsibilities more effectively”.[23] This quote demonstrates some of the improvements that employers and employees will receive by the incorporation of mediation into every aspect of employment law. Similar mediation programmes have worked well in other jurisdictions. For instance, in Ontario, due to the mandatory mediation programme, 90% of matters do not end up in court. An even better result is achieved by the New Zealand State Mediation Service. The process consists of assessing whether or not mediation is possible before the case goes to court. A staggering 95% of claims do not end up in court due to this system. Although it would be nave to suggest that the same result will be achieved here as soon as the Bill passes, mediation will undoubtedly have a positive impact on the way disputes are resolved between employers and employees.[24] Under s.42, the Adjudication Officer is able to strike out claims that are ‘frivolous or vexatious’ This is another example of the Bill attempting to speed up the general process of dispute resolution. This could, however, be potentially be unfair, as it denies the litigant the right to a hearing during a dispute[25]. However, the safeguard of being able to appeal this to the Labour Court seems to potentially alleviate some of these concerns. The above provisions demonstrate that it seems like the Bill will affect dispute resolution in the sense that the disputes will be settled as early as possible, to ensure efficiency and time management for both the WRC and the Labour Court, and the parties involved. As Kevin Duffy said, “I confidently expect that the changes in the Bill, particularly the provisions in respect of mediation and early resolution, will increase the settlement rate and that cases will settle earlier on, and not at the date of the hearing where the resource of the Court are wasted”.[26] Privacy Concerns One key change that will come about if the Bill is enacted is the fact that hearings in the WRC will be held in private. Appeals to the Labour Court, on the other hand, will be held in public. This could have a negative impact on the way disputes are resolved between employers and employees, according to Dr Barry – he argues that if privacy is an issue, a threat of an appeal could be used as a sort of ‘bargaining chip’ by one of the parties, making proceedings unfair.[27] There is also, of course, the issue of the argument of ‘access to justice’ – private hearings are always problematic, unless there are exceptional circumstances that demand it (family law in camera proceedings, for instance). According to the Constitution, justice has to be administered in public, except for ‘special and limited cases as may be prescribed by law’.[28] Also, the European Convention on Human Rights features the right ‘to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’.[29] An argument could be made comparing this provision to those concerning company law hearings (which can sometimes be held in private). However, in those situations there is a clear provision for when privacy is permitted – the hearing has to ‘involve the disclosure of information the publication of which would be seriously prejudicial to the legitimate interest of the company’.[30] There is no such provision in the Bill, making it more suspect. These private hearings ‘could undermine the principle of ensuring public confidence in the justice system’.[31] The extensive powers given to the adjudicators by the Bill are bound to leave both the potential litigants and the public in general in doubt of such a system. If there is no trust in the system, then people might be less likely to use it, causing a negative impact on the way employment law disputes are resolved. Another concern in this area was raised by Noel Dowling, a former trade unionist. He argues that there could be issues with the Bill in the context of unfair dismissals. If the hearings are held in private, this could throw the balance of power in favour of the employer.[32] Compliance with Employment Legislation ‘Prevention is the best cure’, some would say – this statement is an accurate description behind the philosophy behind some of the sections of the Bill. By promoting ‘higher levels of compliance with legislation’,[33] the bill will be helpful in stopping employment disputes before they begin, saving cost, time and the mental health of participants in the process. Compliance will mostly be enforced by inspectors. Compliance notices are a new feature provided for in the Bill that serves as an example of this. According to s.27 of the Bill, if it is discovered that employment law is not being complied with within the workplace, an Inspector may issue such a notice to the employer. If the notice is not complied with the employer may be prosecuted. To make sure that the balance isn’t entirely tipped against the employer, (s)he will receive a chance to appeal such a notice in the Labour Court. Another way in which the Bill will attempt to ensure compliance is through ‘fixed charge notices’, a particular type of fine for certain employment legislation breaches such as failing to produce wage statements to employees, or for failing to provide employees with a written statement of their hourly rate of pay for a pay reference period (s.35). These fines can reach up to €2,000. Such a fine may be appealed to the District Court. The purpose of this is to ‘reduce the need to rely on expensive and time consuming prosecution procedures for the scheduled acts of non-compliance’.[34] Conclusion The aims of the Workplace Relations Bill, 2014 are noble. It is fair to say that employment law, in Ireland in particular, has become extremely complex and daunting for potential litigants – the fact that it is often a costly and lengthy process just solidifies the fact that reform is needed. The Bill’s goal of increasing efficiency, through merging several existing bodies into a single two-tier system, coupled with a focus on early dispute resolution, are bound to make resolving disputes between employers and employees a lot easier and stress-free. There are still, however, some concerns with regards to the lack of detail in the Bill, which might be problematic in terms of logistics. This could undermine some of the lofty goal the Bill sets out to achieve. Also, the lack of open hearings, as well as the powers given to the adjudicators could throw the balance of power in favour of one party over the other, making the dispute resolution unfair. Of course, it is very possible that some of these concerns will be alleviated through future amendments to the Bill. Overall, the Bill is a positive step in terms of simplifying employment law. If certain amendments and clarifications are made, it will have a significant positive impact on the way disputes between employers and employees are resolved.
[1] Labour Relations Commission, Annual Report (2013). [2] Ibid. [3] Dr Brian Barry, ‘The Workplace Relations Bill 2014 – An Important Opportunity for Workplace Relations Reform’ (2014) IELJ 11(4). [4] Legislating for a World-Class Workplace Relations Service: Submission to Oireachtas Committee on Jobs, Enterprise and Innovation (July 2012). [5] Workplace Relations Bill, 2014, Explanatory Memorandum. [6] Neville Cox, Val Corbett and Des Ryan, Employment Law in Ireland (Clarus Press 2009). [7] Legislating for a World-Class Workplace Relations Service: Submission to Oireachtas Committee on Jobs, Enterprise and Innovation (July 2012). [8] [2013] IEHC 207. [9] (1843) 3 Hare 100, [1843] EngR 917, (1843) 67 ER 313. [10][2011] IEHC 279. [11] Ibid. [12] Brian Hutchinson, ‘Editorial’ (2014) Commercial Law Practitioner, 8, 174. [13] Tom Mallon, ‘Employment Law Reform’ (2012) IELJ 3, 76-80. [14] Dr Brian Barry, ‘The Workplace Relations Bill 2014 – An Important Opportunity for Workplace Relations Reform’ (2014) IELJ 11(4). [15] Ibid [16] Kyran Fitzgerald and Andy Prendergast, ‘Changes to State’s Dispute Resolution Bodies to be ‘Profound and Revolutionary’’ (2014) IRN 42. [17] Dr Brian Barry, ‘The Workplace Relations Bill 2014 – An Important Opportunity for Workplace Relations Reform’ (2014) IELJ 11(4). [18] Ibid. [19] Workplace Relations Bill, 2014, ss.36-40. [20] Ibid. [21] Workplace Relations Bill, 2014, Explanatory Memorandum. [22] Employment Equality Acts 1998-2008, s.78. [23] Hanneli Bendeman, ‘ADR in the Workplace – The South African Experience’ (2007) African Jon Conflict Journal 7(139). [24] Dr Barry, “Workplace Relations Bill 2014 – Reforming Employment Dispute Resolution in Ireland” – TCD Lecture. [25] Lyons v Financial Services Ombudsman [2011] IEHC 422. [26] Kyran Fitzgerald and Andy Prendergast, ‘Changes to State’s Dispute Resolution Bodies to be ‘Profound and Revolutionary’’ (2014) IRN 42. [27] Dr Brian Barry, ‘The Workplace Relations Bill 2014 – An Important Opportunity for Workplace Relations Reform’ (2014) IELJ 11(4). [28] The Constitution of Ireland, Art.34.1°. [29] European Convention on Human Rights, Art.6(1). [30] Companies Acts (1963-2008), s.205(7). [31] Claire Bruton, ‘Editorial’ (2014) IELJ 11(4). [32] Noel Dowling, ‘Unfair Dismissals - "Powers That Be" Set to Squeeze the "Little Person"?’ (2014) IRN 37, 22-23. [33] Workplace Relations Bill, 2014, Explanatory Memorandum. [34] Workplace Relations Bill, 2014, Explanatory Memorandum.
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