Wednesday, June 20, 2012

Ireland - Proposed Reform of Workplace Resolution Structures


1    The Background
The Irish government, in a decision of 15 November 2011, decided to reform the State’s existing employment rights and industrial relations bodies.  On 5 April 2012, the Minister for Jobs, Enterprise and Innovation published a document entitled “Blueprint to deliver a World-Class Workplace Relations Service” (the “Blueprint”), which details a number of significant measures which have been proposed in order to reform Ireland’s workplace relations structures and processes. 
That there has been a serious need to examine Ireland’s existing employment dispute resolution and adjudication mechanisms is beyond question. The current multi-forum system is complex and cumbersome.  Under the present system, an employee may bring a complaint that there has been a breach of his/her statutory rights to one or more of five statutory adjudication bodies.  Owing to the pressures on the system, there are significant delays in cases being notified to employers, being assigned a hearing date and in decisions being issued by the relevant deciding authority.  Such delays inevitably render it more difficult for employers to defend claims successfully. 
2    What Reforms are Proposed?
The Blueprint commits to implementing an overhaul of the current system by the end of 2012.  Whilst a number of the proposals are relatively simple and will be implemented with ease, a number are ambitious and radical and, as such, it is likely that there may be challenges in the initial stages.  I examine a number of the proposed measures below.
2.1  Reducing Complexity
From an overall perspective, the Blueprint seeks to simplify the current complex system in a number of ways.  This is to be welcomed.
2.1.1  Single Complaint and Appeals Form
It is proposed that a single complaint form would replace the thirty forms currently in use.  This form was launched on 4 January this year and work is being undertaken to facilitate the submission of the form online in order to increase the efficiency of the system.
Similarly, it is proposed that the twenty paper based appeal forms currently in use would be replaced with a single appeal form with online functionality.
2.1.2 A Two-tiered System
It is proposed to simplify the existing adjudication structures and introduce a two-tiered system whereby two independent statutory bodies, namely, the Workplace Relations Commission (“WRC”) and the Labour Court, would replace the five bodies which currently hear statutory employment disputes.
The WRC will be the adjudicating body of first instance and will also assume responsibility for a number of other functions, including an advisory and information service and a conciliation and early resolution service.
The Labour Court, which currently deals with industrial relations issues and exercises an appellate function in certain matters, will hear appeals from decisions of the WRC.  The parties will have a right of appeal to the High Court on a point of law only.
2.2  Ensuring Consistency
A number of the proposals outlined in the Blueprint are aimed at ensuring a higher degree of consistency in the adjudication of employment law disputes.  Again, this is to be welcomed and should assist in advising clients on the merits of a particular claim.
2.2.1 Reasoned Decisions
As matters stand, the decisions which emanate from the various adjudication bodies vary in the level of detail provided regarding the reasons underlying the decision reached.  This obviously renders it difficult in some instances to advise clients regarding the merits of a particular claim.  Under the new proposals, a template will be produced which will require the WRC to outline the reason for its decision and the law which was applied in reaching that decision.  In my view, this is to be welcomed as it will assist greatly in advising clients, in particular, regarding the likelihood of success in any appeal.
2.2.2  Time Limits
At present, the time limits which apply to initiating a claim and the criteria for extending those time limits vary.  For example, under certain statutes the time limit may be extended if there were exceptional circumstances which prevented the lodging of the complaint, whilst in other statutes, the relevant standard for extension of time is reasonable cause.  Under the new system, there will be a common time limit for initiating claims and consistent criteria will be prescribed for the extension of those time limits.  Similarly, the current variation in the time limits for appealing against first instance decisions will be eliminated and a 42 day period for lodging appeals will apply under all employment statutes.
2.3  Accessibility of Information
The Blueprint outlines a number of measures aimed at making information regarding employment cases more readily accessible.  This should be of assistance in advising clients.
2.3.1  Information Website
A new website was launched on 4 January 2012 which brings together in one place relevant information on all aspects of employment rights and industrial relations.  This is likely to prove to be a useful reference point for both employers and employees.
2.3.2  Publication of Decisions
Under the current system, it is sometimes difficult to obtain copies of first instance decisions.  The reformed regime will require all first instance and appeal decisions to be published.  Again, this is a very welcome reform which will undoubtedly assist practitioners in advising their clients regarding the merits of a particular claim and the likelihood of a successful appeal.
2.4 Increasing the Efficiency of the System
Employment practitioners face considerable practical difficulties in advising clients by virtue of the very significant delays in the current system.  For example, it can take up to two years for a claim of discrimination/harassment under employment equality legislation to be heard.  Frequently, by the time that a case is heard, relevant witnesses may no longer be employed by the employer or even where they are still employed, their memory of the events forming the basis of the claim will have dimmed to the extent that the employer’s ability to defend successfully the claim in question is severely compromised.  In some cases, there is also a risk of increased compensation arising out the delays in the system.  In this respect, where an employee brings a claim of unfair dismissal, the relevant deciding body may award compensation for actual financial loss arising between the date of dismissal and the date of the hearing.  Given that it is taking approximately eighty weeks for unfair dismissal claims to be heard in some parts of Ireland, this is obviously resulting in increased levels of compensation being awarded in successful cases.
2.4.1 Elimination of Delays
A number of ambitious time periods for the processing of complaints are proposed.  It is undertaken that all complaints will be notified within five working days of the lodgement of the complaint.  The system aims to schedule hearings within three months of the complaint being lodged and proposes that 90% of first instance and appeal decisions will be issued in writing within twenty-eight working days. 
2.5  Encouragement of Early Resolution of Disputes
At present, it is possible to mediate claims of discrimination or harassment under employment equality legislation. However, as regards other employment disputes, the relevant legislation does not prescribe an option to mediate.  As such, unless the parties to a dispute agree to compromise a claim in advance of the hearing date, all claims proceed to hearing before the relevant deciding body.  For the first time in Ireland, an early resolution service will be available under the new regime.  This service has been introduced on a pilot basis.  It is designed as a voluntary system and the parties will not be disadvantaged in any way by availing of this service.  The obvious objective of this new service is to attempt to resolve cases at an early stage and thereby reduce the costs which would otherwise be incurred in proceeding to a hearing of the claim. 
3   Other Issues
3.1 Legal Qualification
One significant concern arising from the proposed system is the absence of any requirement that those who will adjudicate upon employment disputes, both at first instance and on appeal, should have a legal qualification.  Where an employee brings a claim against his or her employer, this may have serious implications for the employer’s business, both financial and also in terms of negative publicity and management time.  Given the time and resources which have been expended to date in designing the new system, it is somewhat peculiar that only the registrar, who will effectively be charged with an administrative function in managing complaints, need be an experienced and qualified lawyer. 
3.2 Pressure on Resources
An additional division will be added to the Labour Court.  However, even with this additional division, it is open to question whether the Labour Court will be sufficiently resourced to deal with the increased volume of work which it will be required to undertake pursuant to the new regime.  A consideration of the number of cases dealt with by the Labour Court and those dealt with by one of the current appellate bodies in 2010 suggests that additional resources may be necessary if the Labour Court is to be able to deliver the extremely expeditious service outlined in the Blueprint. 
4 Conclusion
The Minister will shortly seek a decision from the Irish government to draft the Workplace Relations (Law Reform) Bill 2012 to give legal effect to the reforms discussed above, which it is proposed will be enacted this autumn.  The draft scheme of the proposed legislation will be made available to stakeholders and the public for consideration while drafting proceeds.  Whether or not the proposals when enacted are capable of delivering the much needed but very ambitious reforms promised remains to be seen.  However, overall, the Blueprint is a first step in the right direction.