Workplace Relations Commission - Update on Key Changes

Published 7 August 2018

The Workplace Relations Commission recently published its annual report for 2017, its third such report since its establishment in 2015 and the "bringing under one roof" of various employment-related dispute resolution services. Some highlights include the increased efficiencies in its handling of it's considerable case load which includes the following:

• there was a 24% increase in the number of Adjudication hearings, as compared with 2016;

• there was an 82% increase in the number of Adjudication decisions - there is no great disparity between the number of complaints upheld and those rejected;

• twice as many Adjudication decisions were upheld on appeal by the Labour Court as were overturned;

• the number of mediations doubled (which is particularly welcome); and

• the number of outstanding legacy complaints reduced from over 1600 at the start of 2016 to under 300.

Click below for a summary of the key procedural changes that were introduced by the Workplace Relations Act 2015.

Overview

The Workplace Relations Act 2015 was for the most part commenced with effect from 1 October 2015.

All employment and discrimination cases (other than cases brought to the civil Courts) now go to the Workplace Relations Commision (WRC) firstly for Adjudication, and then can be appealed to the Labour Court.

The system as commenced in 2015 comprises of the following: -

• Replacement of Rights Commissioners, EAT, Equality Tribunal and NERA;

• One point of entry – Director General of WRC - for referral to mediation and/or Adjudication ;

• One point of appeal – to the Labour Court;

• The only appeal from the Labour Court, subject to limited exceptions, under the Act is an appeal to the High Court on a point of law;

• Simplified enforcement mechanisms through the District Court;

• Introduction of new compliance measures such as Compliance Notices and Fixed Payment Notices.

Various guidance notes have been published by the WRC on the procedures at each stage and are available on the WRC’s website. Those procedures are largely for guidance only. The Labour Court has published rules for the appeal process, which must be adhered to.

Key Changes

• The time in which to lodge complaints is now almost uniformly six months from the date of the alleged contravention. The complaint must be received by the WRC within that time. 

• The new system standardises the rules on extending time. Claims can be brought within an extended period of a further six months subject to the complainant demonstrating “reasonable cause” for the delay.

• Mediation is no longer restricted to discrimination claims and can now, at least theoretically, be availed of across all types of complaints. It is stated in the Act to be available “at an early stage” and “without recourse to adjudication”. In practice of course it is predicated on willingness of the parties to engage and on the availability of the resources to facillitate same. The number of mediations is increasing.

• There is a single form to be used in bringing complaints.

• Parties are expected at Adjudication stage (and required at the Appeal stage) to provide factual and/or legal submissions. There are specific guidelines around providing submissions, depending on the type of case, e.g. the respondent to an unfair dismissal case is asked to provide a detailed submission within 21 days of request from the WRC.

• Exceptionally, cases can be disposed of by written submission only, although this is applied in only exceptional circumstances.

• Cases can be dismissed where they are deemed to be frivolous or vexatious. This occured in respect of 121 compaints in 2017.

• Postponements of scheduled hearings are granted sparingly with a requirement for “exceptional circumstances” and “substantial reasons”. Applications are made in writing. The practice of the WRC is noted in the Report to be evolving.

• All cases at Adjudication stage are conducted “otherwise than in public” and written Adjudication decisions are generally anonymised.

• Outcomes from Adjudication can be appealed to the Labour Court within 42 days of the date of the decision. An extension of time can be granted where there are exceptional circumstances. There is no upper statutory limit on the period of the extension. The Labour Court can uphold or reject an appeal or can vary Adjudication findings.

• The Labour Court’s published rules in relation to appeals include matters such as the circulation of submissions and witness statements as well as the conduct of hearings. Submissions in relation to unfair dismissal appeals must be circulated between the parties and to the Labour Court well in advance of an appeal hearing. Submissions in other appeals must be furnished to the Labour Court no later than 7 working days prior to the hearing.

• The Labour Court hears appeals in public (other than disputes under the Industiral Relations Acts and, under employment rights Acts, in only exceptional circumstances).

• The appellate function of the Labour Court extends to appeals against Compliance Notices, a new compliance tool available to WRC inspectors. Failure to comply with a Compliance Notice is an offence unless it is appealed to the Labour Court within 42 days and - as an exception to the Labour Court appeal being final - it can then be appealed to the Circuit Court within a further 42 days.

The new tribunal regime does not have any impact on the supervisory role of the civil Courts which can be availed of in appropriate cases e.g. through judicial review.

Conclusion

Having been in place for nearly three years, the achievements of the WRC are evident. However, much of the recent statutory reform is set out as a general framework only. Within that framework Adjudicators can, and do, employ diverging methodologies. It is hoped that the WRC’s Adjudication Division will increasingly focus on guaranteeing procedural certainty for all service users.

The WRC is currently working on its strategy for the next three years. It has been indicated that this includes areas such as an expanding its remit, for example, inclusion of An Garda Síochána.

Additionally, the WRC has indicated that it is working to improve information available for employers and employees alike. This includes raising awareness of its services through advertising, seminars and other media and developing its Outreach Programme. It has further highlighted that by the end of 2018, the target time-frame for the issuing of decisions will generally be less than 6 months from the date of issue, a metric that is already adhered to in 90% of cases.