IRELAND: PROPOSED REFORM OF
WORKPLACE RESOLUTION STRUCTURES
BY DEIRDRE LYNCH, SENIOR
ASSOCIATE SOLICITOR, MATHESON ORMSBY PRENTICE, DUBLIN, IRELAND
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.
