Employment Rights Appeals to the Labour Court...Part 1

Scope of the Article

My previous Stratis article dealt with how to deal with industrial relations disputes which are referred to the Workplace Relations Commission (WRC) and the Labour Court, this is the first in a series of articles which will deal with employment rights disputes before the Labour Court.

The approach to employment rights and industrial relations is very different. Firstly let me distinguish the difference between “industrial relations disputes” and “employment rights disputes”. The former are disputes between employers and workers regarding claims, usually made by a trade union, for an increase in pay or an improvement in working conditions. Industrial relations is about finding a fair basis for resolving a dispute. They are not based on any legal entitlement but on what are regarded as fair and reasonable in the circumstances. In contrast, employment rights disputes relate to issues that are regulated by employment law and by defining the rights and obligations of parties by application of the law to the facts as proved or admitted. They involve a complaint by an individual employee that a legal entitlement under employment law has been breached by the employer.

This series of articles is intended to give a guide to those dealing with an employment rights case before the Labour Court on appeal from an Adjudication Officer of the Workplace Relations Commission (WRC). While great care has been taken to ensure that it a helpful guide, a full analysis of employment law cases before the Labour Court is beyond the scope of this article. This guide should not replace professional advice tailored to your specific circumstances; you would be wise to take such advice before proceeding to the Labour Court.

Irish employment legislation is complicated by the fact that there’s a vast body of employment law enactments, mostly influenced by the State’s obligation to transpose EU Directives into Irish law. The impact of which can be daunting for employers, employee representatives and practitioners alike. The various employment rights enactments give rise to a series of rules and regulations which are designed to protect workers, where these rules are breached by employers they can give rise to claims being referred to the WRC and the Labour Court.

The Workplace Relations Act 2015 – A Profound Change

During my time in the Labour Court, a vast amount of employment rights legislation has been enacted, which constantly gave rise to a need to keep up-to-date on developments both nationally and within the European context.The most profound change in the operation of the Court came about with the enactment of the Workplace Relations Act, 2015 which resulted in the designation of the Labour Court as the sole appellate tribunal in all equality and employment rights cases dealt with at first instance by Adjudication Officers of the WRC.

This Act gave rise to the disbandment of the Employment Appeals Tribunal and the Equality Authority. While the Labour Court had been dealing with cases under employment equality legislation since 1974, and following the enactment of the Organisation of Working Time Act in 1987, the Labour Court continued to be the selected as the appropriate adjudication body for new pieces of employment statues that came into force including the national minimum wage in 2000, part time workers in 2001, fixed term workers in 2003, safety, health and welfare in 2005, agency workers in 2012, protected disclosures in 2014 and many more.

The 2015 Act had a massive impact on the Court as it was now dealing with all employment rights cases, including cases under the Unfair Dismissals Act. This resulted in a surge in appeal cases coming before it, however, coinciding with this period, the Court saw a reduction in industrial relations cases. The Court was prepared for the changes that took place, it added an extra division and increased the number of Deputy Chairs from four to five. I believe the reformed infrastructure has accomplished major improvements in the system, in particular, it has resulted in improvements in timeframes for users to achieve finality in their employment rights based disputes and in less appeals to the High Court. I also believe that it has resulted in decisions appealed from first instance hearings being more consistent and therefore more predictable.

This series is split into a number of articles covering many aspects of employment rights cases before the Labour Court. While I will not be dealing with the workings of the Adjudication Service of the WRC as that is outside the scope of my experience, it will look at what happens immediately after an Adjudication Officer has issued his/her decision. It is intended to provide practitioners with useful information on the workings of the Labour Court and what you can expect when you have an appeal coming before the Court.

I will outline the procedures for submitting an appeal to the Labour Court, advise you on how to prepare a submission to the Court, address the requirement of witnesses, go through the basic legal principles to be considered while dealing specifically with some of the preliminary issues that arise in employment rights cases, such as, time limits for the initiation of a claim; applications for an extension of time; I will also deal with the issue of the burden of proof which can be complex especially in employment equality cases where there’s a shifting burden of proof. I will point out some of the areas where parties need to be careful about how they present their cases and will give you guidance on how to deal with cases you may have coming to the Labour Court.

Referral of Appeals of an Adjudication Officer to the Labour Court

As the Labour Court is now the sole appellate body, all employment rights disputes come to it on appeal from the first instance hearing and decision by an Adjudication Officer of the WRC.

Timing of Appeal – Within 42 Days

Each of the employment statutes within the Labour Court’s jurisdiction provides for an appeal from a first instance decision once it is submitted within the time limit for bringing the appeal. An appeal of an Adjudication Officer’s decision must be made to the Labour Court within 42 days of the decision. The date of the decision counts as the first day of the 42-day period. It is vitally important that the appeal is submitted in time as applications to the Court for an extension in time are rarely accepted.

The 42-day period may be extended where the delay in presenting the appeal is due to ‘exceptional circumstances’, which is a higher standard than that of ‘reasonable cause’, the latter test applies if a claim is submitted to the WRC out of the six-months’ time limit. The onus is on the applicant to establish the existence of exceptional circumstances and to establish that the existence of the exceptional circumstances was the substantial cause of the delay in initiating the claim within the requisite 42-day period.

Occasionally, the Court comes across instances where an appellant submitted their appeal late because they counted the 42 days incorrectly. In accordance with the provisions of the Interpretation Act 2005, the date of the Adjudication Officer’s decision is day 1 of the 42-day period, so the appeal must be in within 42 days of the date of that decision. Generally where the reason given to the Court for the late submission of the appeal is down to miscalculating the 42 days, the Court has not accepted that exceptional circumstances existed justifying the late referral and the application was rejected. Merely being unaware of the method of counting the days has not been accepted by the Court.

When faced with an application to extend, the Court will look at the facts of each case and the individual circumstances arising. It will firstly determine whether exceptional circumstances in fact existed and secondly whether those circumstances operated so as to prevent the applicant from lodging the appeal in time. It takes the view that in order to constitute exceptional circumstance, the circumstances do not necessarily need to be unique, unprecedented or indeed very rare, but they cannot be those which are regular or routinely or normally encountered. However, it must first be satisfied that exceptional circumstances were in existence during the period for the giving of notice of an appeal to the Court and must also be satisfied that the exceptional circumstances applying prevented the giving of a notice of an appeal to the Court by the due date.

One case where the Court allowed the appeal to proceed involved a case where the applicant posted his appeal on day 41 by express registered post and was assured by An Post that it would be delivered the following day, however, it was delivered on day 43. In those circumstances the Court decided that the circumstances were exceptional and outside of his control.

Appeal is by Way of a De-Novo Hearing

An appeal before the Labour Court is by way of a de-novo hearing, i.e., an appeal involves a complete rehearing of the case by the Labour Court, as if the case had come before it in the first instance, all issues of fact and law must be presented and will be considered afresh. While it is a full rehearing of the case as presented to the Adjudication Officer it is not a review of the first instance decision. The grounds of appeal or the reasoning behind it is not relevant, the fact that an appeal has been made means the case is re-heard. This is different than how internal company appeals may be heard. The parties may present new evidence to the Court in the appeal and can advance new arguments which were not raised at the original hearing before the Adjudication Officer.

The Court has appellate jurisdiction only on a valid decision of an Adjudication Officer. Therefore, if no decision was made on a particular issue, then no appeal of that issue can be made to the Court as the nature of the complaint must remain the same and new claims which were not before the WRC cannot be raised in an appeal. For example, if a claim for discrimination on the ground of gender was considered by the Adjudication Officer, it cannot be changed to a claim of discrimination on the ground of family status on appeal.

However, it is possible for a party to limit the scope of an appeal at the hearing before the Court, but such an application may only be acceded to on consent by the other party. Occasionally the Court receives an appeal that seeks to appeal only the level of the award of compensation. Generally, the Court has accepted that an appeal can be so limited. Where an employer accepts liability but appeals against the size of an award of compensation no issue arises. Where, however, a complainant, to whom the employer was found liable, appeals in the hope of obtaining a higher award, a question may arise as to whether the Court may then reopen the question of liability if asked to do so by the other party. The practice of the Court has been that, in the absence of a cross appeal on liability, to accept that the appeal is confined to the question of quantum. In such an instance, while the hearing is a de-novo hearing, it would be wise for practitioners to consider whether or not they should submit a cross-appeal – however, such a cross appeal must be submitted within the statutory 42 days of the date of the Adjudication Officer’s decision, otherwise their appeal will be out of time.

On the odd occasion, at the appeal hearing, practitioners will raise a grievance regarding the conduct of the hearing before the Adjudication Officer. The Court has no jurisdiction to entertain complaints concerning the way in which the WRC fulfils its statutory mandate and does not exercise any supervisory role over the conduct of cases by the Adjudication Officer. The WRC is an autonomous statutory body with power to establish its own procedures. If a party is aggrieved at any aspect of those procedures they have a remedy through other proceedings, and may take a Judicial Review of the WRC process. By appealing the Adjudication Officer’s decision to the Court, the Court will proceed to hear the appeal, regardless of issues raised concerning the conduct of the hearing at first instance.

When are fees applicable

Where a party to a case before an Adjudication Officer wishes to make an appeal of the decision to the Labour Court but had failed to appear at a first instance hearing of the WRC they will have to pay a fee of €300 when lodging the appeal. If the Labour Court determines that they had good cause for failing to attend the first instance hearing, the fee will be refunded.

The next article in this series will deal with how to prepare for a Labour Court Hearing, who can represent the parties at hearings. In particular, I will address how to prepare a submission for the Court, what should be included in the submission, the pitfalls to look out for. I will outline the Court rules for sending submissions and the different rules attached to employment equality cases and unfair dismissal cases.

In a later article I will give details on the issue of the need for witnesses at hearings, and how the Court is likely to weigh up the evidence given.

If you would like to talk to us about any of the above issues, please get in touch with Brendan McGinty, Managing Partner, Stratis Consulting, at brendan.mcginty@stratis.ie or any one of our Partners.

Caroline Jenkinson

Strategic Adviser with Stratis Consulting, and Former Deputy Chairman of the Labour Court

Stratis Consulting

‘Strategic Employment Relations’

T: +353 (0) 1 2166302

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Disclaimer: The information in this article is for practical guidance only and does not constitute legal or specific case advice. The answers to specific situations will vary depending on the circumstances of each case. This is not a substitute for specific professional advice relevant to individual circumstances facing your business.