Workplace Dispute Resolution – Addressing the Covid Challenge

Introduction

The past 12 months have brought significant and immediate challenges to workplace problem solving and issue resolution. The opportunity for personal face to face contacts to build or establish working relationships has been reduced or eliminated altogether. For some employees meetings are being held through the medium of Teams, Zoom or Webex and this can be a cold place for justice to be administered in a manner that makes people feel they have been fully heard before decisions are made that impact them.

At a local level HR, Line Managers and Trade Union representatives have continued to address issues within the constraints posed by social distancing, meeting duration and in some cases diminishing reservoirs of emotional capacity. The Pandemic has taken its toll both in terms of the nature and volume of the HR issues that are arising and the capacity of the actors in the system to deal with them. Many people have their own challenges at home, or in their wider family network, or in remote working, and it can be difficult to compartmentalise these. The boundaries have become blurred and while many have avoided infection, Covid has left a mark.

To their immense credit, our primary system of workplace problem solvers, The Workplace Relations Commission and the Labour Court, have facilitated remote hearings and virtual meetings to continue to process as many claims and disputes as possible. Nevertheless it is likely that as we emerge from this phase of the pandemic there will be large back logs of issues and claims to be handled both at local level and within the 3rd party system. Because organisations are being impacted so differently, we will also likely be dealing with the full spectrum of issues from redundancies to pay increases simultaneously.

A small but highly reputable constellation of independent mediators, facilitators and adjudicators continue to provide their services to employers and employees. Their role and contribution will continue to be important in ensuring that IR/HR issues are, where possible, resolved at ‘local level’.

As we reflect on what lies ahead it is apparent that the dispute resolution systems, both primary and alternative will face a challenge in processing the volume of cases that are parked, hibernating or yet to be framed. There are a number of options to enhance the capacity to resolve issues in a more efficient and effective manner:

1. Options within the Traditional Workplace Relations Commission / Labour Court Route

Some options worth considering are:

o Evidence of local level engagement must be provided by the parties in advance of the WRC hearing any IR/ER Case.

o Evidence of any established grievance procedure (in a contract, handbook or collective agreement) has been utilised and exhausted before any rights based case is processed by the WRC.

o WRC mediation option must have been used on all employment rights cases before any adjudicator hearing can be scheduled.

o Fast track option to hear cases via written submission by agreement between the parties.

o Temporary fast track option for cases to be heard by an experienced panel of adjudicators.

o Modest administration fee to be paid at point of submitting each rights case, which is fully repaid once mediation has been exhausted.

o Register of multiple users to be maintained, via PPSI numbers and Employer Registered Numbers with ‘support visits’ from WRC Advisory and Inspection Services or The Revenue Commissioners.

2 Alternative Dispute Resolution Options

It may be timely for employers to consider introducing Alternative Dispute Resolution (ADR) mechanisms into their issue resolution processes. These may be positioned as an alternative to, or pre stage to, the State provided dispute resolution machinery or the Civil Courts. ADR options can be divided into processes that may be used to deal with individual or collective issues.

In the individual arena the main options include mediation, fact finding and adjudication with the choice depending on the nature of the issue, and the willingness of the parties to engage. Many companies use mediation as part of the grievance process. Some larger companies have nominated employees who are trained mediators, and who can independently assist fellow colleagues in resolving their conflict. External mediators who specialise in resolving workplace conflict can also be appointed.

In the collective arena the main options include facilitation and in house tribunals . Within the broader setting of collective workplace issue(s), an experienced external person will try to facilitate discussions between the parties and develop an agreed resolution to the issues in dispute.

In recent years there has been a considerable growth in the number of organisations, primarily in the unionised semi-state sector, who have established joint employer- trade union internal resolution tribunals to resolve issues and disputes internally. In some cases their decisions are binding on the parties. The actual resolution process varies depending on the organisation, but the common purpose is to address issues internally in a relatively short time frame.

Proactive Local Engagement is Essential

As stated in the Law Reform Commission’s Report, “Alternative Dispute Resolution – Mediation and Conciliation (2010:102), the proactive engagement with conflict, although initially seen as a less favourable option, may often produce positive results, which is why early dispute resolution in workplace disputes is important. Through engaging in difficult conversations and dealing with conflict situations, employees are likely to be more satisfied, reducing the stress and dissention in the workplace; and thus, increasing job satisfaction and improving productivity. ADR processes, such as mediation and conciliation, can assist in engagement in difficult conversations and can result in the early resolution of workplace disputes.” (Report on Alternative Dispute Resolution – Mediation and Conciliation (2010:102))

Conclusion

In conclusion, employers now need to start thinking proactively about how they will deal with the potential for, and range of, employee grievances and disputes in a post Covid-19 work environment. Perhaps it is time to consider alternative ADR processes that will help create a more harmonious and sustainable work environment for the future.



If any business has questions, or need further guidance or support on the issues discussed in this article, please do get in touch with me at paul.obrien@stratis.ie.

Paul O’Brien

Associate Partner


Stratis Consulting

‘Leading People Strategies’


E: paul.obrien@stratis.ie

T: +353 (0) 1 2166302

M: +353 87 9978117

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

The information in this article is for guidance only and does not constitute legal advice. The answers to specific situations will vary depending on the circumstances of each case. You should consult Stratis for information and advice relevant to individual circumstances facing your business.



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