Out with the old and in with the new

Garda Review MagazineWhen it comes to employment rights, new employee legislation will impact on rank and file gardaí writes Aine Curran.

Aine Curran Garda ReviewThe Workplace Relations Act 2015 is one of the most significant pieces of employment legislation to be introduced in recent years, radically overhauling the entire process of how employment rights disputes are dealt with in Ireland. Such reform was long overdue as the system was a maze of different legislation, multiple claims going to different fora, different routes of appeal and different time limits for initiating claims. The system was anything but modern and user-friendly and for some time was creaking under the weight of its very many shortcomings.

As a result there were huge delays in processing claims, taking anything from 18 months to three years depending on the forum. Similarly there were huge delays in decision issuing, with the aspirational time frame of six to eight weeks living more in the realm of fantasy than reality. As a result the phrase ‘justice delayed is justice denied’ rang very true for very many claimants.

We are told that all that is about to change with the enactment of the Workplace Relations Act 2015 due to come into effect on October 1st 2015. When the Bill was published in 2014 the Minister heralded the introduction of “a modern, user-friendly, world class employment workplace relations system….resolving disputes as quickly and inexpensively as possible.” Let’s hope that the new system lives up to such lofty aspirations.

The Act provides for the establishment of the Workplace Relations Commission which will replace all existing employment law fora. Though radical in many ways the legislation does not go so far as introducing additional employment rights, so any claims which members of An Garda Síochána could take under employment legislation will remain the same.

The system of dealing with such claims is radically different. The Employment Appeals Tribunal, Equality Tribunal, Rights Commissioners Service and Labour Relations Commission are being dissolved and all employment rights disputes and complaints will now go to the Workplace Relations Commission, as will industrial relations issues previously dealt with by the Labour Relations Commission. The only forum to survive the chop is the Labour Court which will now hear appeals of employment rights claims as well as retaining all of its existing industrial relations functions.

“The system was anything but modern and user-friendly and for some time was creaking under the weight of its very many shortcomings…”

Claims are initiated by the use of a single complaint form which is available online. This is a vast improvement on the 30 paper complaint forms that previously existed.

Mediation will be offered at first instance as a means of addressing claims quickly and cheaply. Mediation is entirely voluntary and either party can withdraw at any time. It is to be welcomed as a means of resolving disputes at an early stage and is very much in line with modern thinking on dispute resolution. If resolution is not reached through mediation, then the matter will be referred to an adjudication officer.

Whilst the title adjudication officer may sound quite unprepossessing, this is in fact an individual with considerable powers. To put the powers of an adjudication officer in context, a judge of the District Court can make awards of up to €15,000, with a judge of the Circuit Court being able to make awards of up to €75,000. An adjudication officer will have jurisdiction in certain circumstances to make awards of up to two years gross salary, which in many cases will exceed the jurisdiction of the District Court or the Circuit Court; powerful indeed. They will also have powers to make orders reinstating an employee to their position following dismissal or making specific directions such as ordering an employer to cease from engaging in a discriminatory practice.

A controversial aspect of the Act, at least in employment law circles, is that all hearings before adjudication officers will be in private, although appeals to the Labour Court will be in public. Given the large awards that adjudication officers can potentially make, this is a matter of concern and seems to fly in the face of the constitutional requirement that justice should be administered in public.

A system of closed hearings is also out of step with the pattern of increased transparency in all aspects of life. For example the on camera rule in family law cases has been relaxed, with the media now being permitted to report, albeit to a limited extent. Whistleblowing legislation in the form of the Protected Disclosures Act is all about increasing transparency. It seems odd that our ‘world class’ employment rights system is going in the opposite direction.

Whilst the Workplace Relations Commission will publish every decision on their website the parties names will be redacted. It is easy to see why private hearings and anonymous decisions would appeal to employers. No more of those pesky headlines highlighting the mistreatment of employees.

As with anything though, it cuts both ways and many employees genuinely fear how the publicity of a reported case could hinder their chances of securing employment and thus welcome the more private nature of the new system. Ultimately however I believe that the private nature of the hearings will go against employees as the deterrent value of negative publicity for employers cannot be underestimated.

In terms of the hearing itself, the new legislation will lead to many changes. The system we have been familiar with has been the adversarial system of evidence being given and challenged through cross examination. The new system is to be inquisitorial rather than adversarial, so robust cross examination of witnesses will be a thing of the past, with the hearing instead taking the form of the presentation of written submissions and evidence to the adjudication officer, who may then ask relevant questions.

The adjudication officer will have the power to summons witnesses and compel the production of documents. Whilst not specifically provided for in the Act it is expected that the Minister will make regulations requiring the furnishing of statements in advance of hearings before the adjudication officer. This is a vast improvement on the old system where parties would often be in the dark as regards the substance of their opponent’s case until the day of the hearing.

Strange as it may sound, up until now there was no requirement on decision-makers to actually provide the rationale for their decisions. The EAT came in for particular criticism in the past for not providing reasoned decisions. That is now about to change with a requirement on adjudication officers to set out the reasons behind their decisions. This can only be a positive thing.

One of the most unwieldy aspects of the old system was the different time limits for the initiation of claims and the appeal of decisions. The time limit for the referral of complaints has now been standardised to six months with provision for extension of time for a further six months by showing reasonable cause. Appeals of adjudication officers’ decisions must be lodged with the Labour Court within 42 days of the decision. There is the possibility of a further appeal to the High Court on a point of law.

It remains to be seen how the system will operate in practice, but on paper at least it is a vast improvement on the confusing labyrinth that existed. One might say anything that leads to greater efficiency is to be welcomed but I would caution that it should never come at the expense of openness and transparency. 

Aine Curran is a Partner at O’Mara Geraghty McCourt Solicitors; e-mail: acurran@omgm.ie


For full and in-depth coverage, see the current printed edition of Garda Review.

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