Employment Rights Appeals to the Labour Court…Part 2

Preparing for a Labour Court Hearing on Employment Rights

Scope of the Article

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). In the first part of this series Caroline Jenkinson, Strategic Adviser with Stratis, and Former Deputy Chairman of the Labour Court, covered The Workplace Relations Act 2015 and highlights why it has caused a profound change to the number and type of cases coming before the Labour Court. She also covers referral of appeals of an Adjudication Officer to the Labour Court.

This particular edition 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.

Making a Submission

Parties are required to make submissions setting out the basis of the claim, deal with any questions of law that will be relied upon in advancing or defending the claim and provide details of any witnesses being proffered with a summary of the evidence they are expected to give (see further details below). Evidence is taken under oath or by affirmation. The Labour Court is then obliged to reach its own decision on all issues of fact and law arising in the case. It may affirm, vary or set aside the decision of an Adjudication Officer and shall communicate that decision to the parties. An appeal lies from a Determination of the Labour Court to the High Court on a point of law only. A situation may arise whereby during the course of a hearing, a conflict of evidence arises and one party wishes to call a witness not previously listed to refute evidence submitted, in such circumstances the Court will generally be flexible and permit that party an opportunity to produce that witness.

The Labour Court acts by division. A division of the Labour Court consists of the Chairman, or a Deputy Chairman, of the Court and two Ordinary Members.

If an interpreter, or other support is required, this request should be stated on the form when submitting the appeal. The Court will provide the interpreter from a recognised

interpretation service. An interpreter is permitted to attend the Court for the sole purpose of translating the proceedings for the non-national. There is no requirement for the interpreter to speak to the person outside of the formal proceedings of the Court, and no need to find out what the case is about before the hearing. Unfortunately I have come across situations in the Court where practitioners or other persons in the Court who could speak the language the Interpreter was translating, disputed the translations given. In some instances, cases have had to be abandoned on the day and new hearings set up.

Labour Court hearings take place in Dublin and a number of venues around the country. Hearings are normally scheduled for 90 minutes but depending on the complexity of the case may be scheduled for a longer period.

Representation at Hearings

The conduct of the hearing will be regulated by the Chairman of the Division of the Court hearing the case. A party to the case may be represented by: -

· a trade union representative,

· a representative of an employer’s organisation,

· a solicitor or counsel,

· with the consent of the Court, any other person of their choosing.

The Labour Court is intended to be inexpensive, accessible and informal, however, in more recent times, parties are being represented by legal representatives, in contrast to previous times when employers were mostly represented by employer’s organisations, such as Ibec and workers were traditionally represented by trade unions. To some extent this change is accounted for by the increasing complexity of employment law, however, a new trend has emerged, whereby legal practitioners are now more inclined to be present at Court hearings in industrial relations cases also. Issues of law do not arise in these cases and legal rights are not in jeopardy, yet legal practitioners can often lose sight of these principles and present the case as though they were. In my experience, both employer representatives and trade unions are far more effective in such cases as they have a fuller understanding of industrial relations practices and generally a comprehensive knowledge of the company/business sector the case relates to.

Whereas, in employment rights cases the situation is different. Here the issue before the Court relates to the application of statutory rights and obligations. The Court has traditionally held that the rights to legal representation is a corollary of the right to fair procedure. However, in many such cases, both employer representatives and trade unions have very successful represented their clients/members without having the associated legal costs. I have noticed over the years, complainant’s bringing cases to the Court, where they have abandoned their union representative in favour of legal representation. In many instances the sound advice of the union representative has been ignored and they pursue their case through a solicitor. When the matter comes to Court, the solicitor has secured the services of a barrister to represent the complainant, thereby increasing the costs further. In many instances, even where the claim is well founded, an award of compensation may be very small by the time the legal fees have been paid.

Preparation of Submissions

Where the appeal is out of time and an application for an extension is made, the grounds on which an extension of time is sought must be considered by the Court - more about that later.

Before the hearing takes place, each party to the appeal before the Labour Court must prepare a written submission of their positions in relation to the case. These submissions will form the basis of the Court’s investigation of the appeal at the hearing so it is important that they be well prepared, clear and comprehensive, yet concise. Submissions are exchanged between the parties, in advance of the hearing.

As a general rule the Court does not accept post hearing submissions/further documentation, however, it may on occasions specifically request material of the parties at the hearing, only such material will be accepted and must be exchanged between the parties. The Court will never accept information on a confidential basis, i.e. if it’s not shared with the other side.

The purpose of a written submission is to aid the Court members’ understanding of the salient points in the case. It is also necessary to ensure that the other party is not taken by surprise and the exchange of submissions before a hearing takes place is generally regarded as beneficial for all concerned. The members of the Court division will read the submissions beforehand and will often discuss the issues identified and conduct research before the hearing. The submission is an opportunity for each party to set out their case and state the reasons in defence of their position. Material presented in the course of a hearing or presented orally, will not have the same impact.

Clearly, in employment rights cases, it is important to highlight the legal arguments you wish to make, nevertheless, the Court does not rely solely on the submissions made. The members of the Court have a wide variety of both practical and professional experience and have extensive knowledge of the law. Besides the arguments made in the submissions, the Court will also conduct its own research on the law applicable and may consider cases not cited in argument, seeking out relevant case law both from Irish case law and European Court of Justice cases. Practitioners would therefore, be well advised to consider all relevant authorities and to address those which might appear to be against them as well as those which support their case. When writing up a decision, the Court takes great care to craft the decision having regards to all of these elements.

Submissions should be addressed to the Chairman and Members of the Labour Court. If you want to ensure your case is efficiently presented to the Court, then it is important to clearly identify details of the claim giving rise to the appeal and the particular sections of the legislation being relied on. I’ve always been amazed at how often it’s not clear what the actual claim is, and sometimes that only becomes obvious at the very last sentence of the submission.

The key points need to be prioritised and weighted accordingly. Submission should highlight these and be clear. There should be no doubt or opportunity for different interpretations of the case being made or what is considered critical. Everything else is an add on to support but must not confuse or cause key points to lose their significance.

While the written submission should identify the principal findings of the Adjudication Officer which are on appeal, it should be remembered that the appeal is a de-novo hearing of the case. Hence, what happened at the first instance hearing is irrelevant. The submission should set out the facts relied upon by the party. It should include a brief description of the background to the claim and the nature of the business; it should set out the key points in support of the case. The opposing side will have the opportunity of challenging anything that is in the submission and very often the Court members will probe in even more depth. For example, working time records will be closely examined by the Court to ensure compliance with the Organisation of Working Time Act. The Court will closely examine fixed term contracts to determine whether they comply with the requirements under objective justification for renewals. Disciplinary procedures will be scrutinised to determine if dismissal procedures were followed closely. However, the Court will always be careful to ensure that a party is not taken by surprise and will afford an opportunity for response, sometimes by way of an adjourned hearing or by further written submission.

The Court is not a forum where it simply listens to arguments made. Each member of the Court will have extensive knowledge of the law, will have read, digested and studied each case appearing before it. It will have carried out its own research before the hearing takes place and will question representatives on legal points and expect practitioners to produce authorities dealing with the points they make.

I always found it more difficult to get to grips with cases when I received lengthy submissions, along with appendices that were hundreds of pages long, including copies of emails repeatedly produced, multiple copies of the same letters, copies of large documents and lengthy precedent cases and very often these submissions would have no page numbers! When a party arrives into the Court with banker boxes of documents, it can be very intimidating for the other side, but it also makes it more difficult for the Court to get to grips with the case, if excessive documentation is presented and the Court is highly unlikely to accept new information presented on the day of the hearing. Long submissions leave it open for the Court to decide what is important. The Court makes every effort to ensure fair procedures apply to all and that no party is left short. It is important to bear in mind that while each case before the Court is given the utmost time and attention, it is still only one of many before the Court.

When putting a submission together, the main body of the written submission should be no more than 4 to 5 pages. The appendices to the submission should reference and include relevant supporting documents such as correspondence between the parties, investigators’ reports, outline of disciplinary hearings, Company/Union Agreements or other relevant policies, such as Bullying and Harassment Policy, Disputes and Grievance Policy etc,. Documents such as attendance records, medical certificates, reports from independent specialists, working time records, tachographs etc may be included where relevant. Where a party cites an authority in their submission they should append a copy of the full report of the case, or where a number of cases are cited, provide the Court with a book of authorities. Parties should also indicate in their submissions the passage or passages upon which they rely. In many instances, the appeal(s) before the Court may encompass claims under various different pieces of legislation, make sure that you clearly address each case individually in your submission.

All pages of the submission, the appendices and any other submitted documentation should be numbered for ease of referral at the hearing.

A common mistake parties make in preparing submissions for the Labour Court is that they assume that submissions/documents/appendices provided to the Adjudication Officer at the first instance hearing have been passed to the Labour Court for the appeal – the WRC and the Labour Court are separate bodies. Therefore, no information is exchanged between the two bodies. If you wish to bring any documentation to the Court’s attention, then it must be included with the submission to the Court.

Submissions for Appeals under employment rights enactments other than under the Unfair Dismissals Act and the Employment Equality Acts

The parties to such appeals must provide the Labour Court with four copies of their written submissions not later than 10 working days in advance of a hearing. A further copy must be exchanged with the other side. Confirmation that the submissions have been exchanged between the parties must be given to the Court.

Submissions for Appeals under the Employment Equality Acts and the Unfair Dismissals Acts

In the case of appeals under the Employment Equality Acts and the Unfair Dismissals Acts, different arrangements apply. In such cases, the Court will require the Appellant to submit four copies of its submission within three weeks of lodging the appeal setting out the factual and legal issues relied upon. A further copy must be sent by the appellant to the respondent. The respondent will then be required to lodge four copies of its submission within a further three weeks, and a further copy should similarly, be copied by the respondent to the appellant at the same time. Confirmation that the submissions have been exchanged between the parties must be given to the Court. The submissions should be accompanied by a statement of the number of witnesses, if any, that the party filing the submission intends to call at the hearing of the appeal. This information is required so as to facilitate the Court in estimating the time required for the hearing. When all such submissions have been received, then and only then will these cases be set down for a hearing.

The standard of proof in employment equality legislation is a shifting burden, i.e. it shifts from the complainant to the respondent, once the complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. In cases under the Unfair Dismissals Acts, where the fact of dismissal is not in dispute, there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it. Therefore, except in constructive dismissals cases, it is for the employer to establish that the dismissal was fair rather than for the employee to prove that it was unfair. These are issues that will be covered in more detail in later articles of this series.

The next article in the series 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. It will outline how the Court has been dealing with hearings during the Covid-19 pandemic; the need on occasions for a case management of the parties prior to the hearing taking place; what happens on the day of the hearing; and enforcement of Labour Court determinations.

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

M: +353 (0) 87 2433038

W: www.stratis.ie Twitter: @Stratisconsult LinkedIn: Follow us here

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.