Commencement of WRC Complaint
There is a common procedure for the presentation of complaints and the referral of disputes under employment legislation to the Director General of the Workplace Relations Commission. The complaint is presented to the Director General by giving notice thereof in writing to the Director-General. The notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
There are prescribed forms of application to the WRC. The standard complaint form is available online. The vast majority of complaints are made on-line. Unlike the earlier position, a single application form is used for complaints under most employment legislation. The form requires certain information.
Although the form does not require detailed particulars of the claim, it is better practice to furnish them. A clear statement setting out the details of the complaint is, in effect required from the complainant. A mere assertion of the complaint without details is insufficient. An adjudication officer hearing the complaint may draw such inference or inferences as he or she deems appropriate where relevant information is not presented in a timely fashion.
An employee or where the employee so consents, certain representatives on his behalf, may present a complaint to the Director-General. The representatives may be a solicitor, trade union official or another. The representative must have authority to present the complaint.
An agency worker is deemed to be an employee for this purpose and references to an employee and employer refer to an agency worker and hirer in this context. A wider category of persons than “employees” may make complaints under the particular legislation that governs the complaint.
Time Limit for Commencement of WRC Complaint
There is a standardised time limit of six months for making the complaint and initiating the proceedings. This may be extended to 12 months where reasonable cause is shown.
The 6 months’ period is measured from certain defined key dates in the case of particular types of complaint, such as
- adoptive leave
- carers’ leave
- maternity safety leave
- parental leave
- minimum wage
The time limit may be extended to 12 months where reasonable cause is shown.
Response in WRC Dispute
Where there is more than one respondent, a separate complaint application should be referred for each respondent. This will enable the allocation of a unique reference number for each respondent. Where required.
The Director-General shall cause a copy of the notice to be given to the other party to the complaint or dispute concerned. The respondent receives a form which he may use to enter an appearance. The respondent must specify whether he disputes the claim and set out the facts and conditions on which he opposes the claim. A detailed statement is required.
The response time is specified. It is usually 21 days. The Director-General may, in exceptional circumstances, extend the time limit for the receipt of a statement. Electronic means may be used where possible and is encouraged. Otherwise, documents may be sent by registered post.
A clear statement setting out the details of the complaint is required from the complainant when submitting the form. A statement is required from the respondent within 21 days of the date of the request by the WRC. A mere assertion or denial of the complaint without details is insufficient. An adjudication officer hearing the complaint may draw such inference or inferences as he or she deems appropriate where relevant information is not presented in a timely manner.
Public bodies which determine a person’s rights, in particular, the right to earn a likelihood and a person’s good name, must follow fair procedures in accordance with the principles of natural and Constitutional justice. Fair procedures generally require a hearing by an impartial body, together with a right to fully present one’s case and to challenge one’s opponent’s case. Legal representation may also be required. What satisfies the requirements for constitutional justice/fair procedures will vary, depending on the context.
Generally, the WRC legislation encourages mediation and the informal resolution of disputes. The (more formal) WRC adjudication system is to provide a relatively speedy, efficient and low-cost mechanism for determining employment disputes. The adjudication officers hear most disputes.
A hearing before an adjudication officer of the WRC is not subject to the level of formality as a court hearing or the former EAT. The adjudication officer has discretion as to the conduct of the hearing and the presence of any person. The procedure is more inquisitorial than that in the EAT. The adjudication officer is entitled to ask his own question and may investigate the evidence presented to him.
WRC Proceedings II
The Workplace Relations Act provides that the proceedings will be heard “otherwise than in public”. See generally the sections on the Workplace Relations Commission.
Labour Court hearings on appeals from the adjudication officer are heard in public unless it decides that they should be in private (or partly in private) because of special circumstances. The Labour Court has wide powers to require witnesses to attend and to take evidence on oath.
The Labour Court may refer a question of law arising in the appeal to the High Court. The High Court’s determination is final and conclusive.
Written Submissions in WRC Case
The Director-General may, where he or she considers that a complaint presented, or dispute referred, to him, or her may be dealt with by written submissions only, inform the parties to the complaint or dispute, by notification in writing, of his or her intention to deal with the complaint or dispute in that manner.
Where a party to a complaint presented, or dispute referred, to the Director-General is given a notification and, not later than 42 days after having been given the notification, that party informs the Director-General that he or she objects to the complaint or dispute being dealt with in the manner specified in the notification, the Director General shall not deal with the complaint or dispute concerned in that manner.
The Labour Court may, where it considers that an appeal may be dealt with by written submissions only, inform the parties to the appeal, by notification in writing, of its intention to deal with the appeal in that manner. Where a party to an appeal is given a notification and, not later than 42 days after having been given the notification, he or she informs the Labour Court that he or she objects to the appeal being dealt with in the manner specified in the notification, the Labour Court shall not deal with the appeal in that manner.
Early Resolution I
The WRC offers an Early Resolution Service in some types of cases. It is designed to apply to less complicated and less controversial disputes. Participation is voluntary for both parties. The WRC appoints a case resolution officer, in order to facilitate the resolution of disputes (where possible) at an early stage, without recourse to adjudication.
Persons who avail of the Early Resolution Service do not lose their right to have their complaint dealt with by means of adjudication, hearing or inspection, as appropriate. They are not to be disadvantaged in relation to the waiting time for these processes. Should the early resolution yield a compromise or settlement or the withdrawal of a complaint, the outcome is confidential. If it is unsuccessful, anything disclosed by the parties in the process cannot be subsequently used in the adjudication or inspection process.
Should the early resolution yield a compromise or settlement or the withdrawal of a complaint, the outcome is confidential. If it is unsuccessful, anything disclosed by the parties in the process cannot be subsequently used in the adjudication or inspection process.
Early Resolution II
The Early Resolution Service (ERS) is a function of the mediation service. If an employment rights complaint has been submitted to the WRC by a complainant who is willing to engage in mediation and has indicated this on their claim form, an Early Resolution Service (ERS) intervention may be offered if both parties are agreeable. It is normally a one to one process whereby the ERS will make contact with the parties by phone and if possible mediate a resolution to the issues in dispute.
The same voluntary principles apply to the ERS and the Workplace Mediation service. Where the ERS does not resolve the issue the complaint will continue to adjudication and will be heard in the normal fashion
Conciliation is a voluntary process in which a professional conciliation officer facilitates employers and employees and/or their representatives to resolve workplace issues when their own efforts have not succeeded. The conciliation officer acts as an impartial facilitator in discussions between the parties. The primary value and function of the service is that it is available to provide an experienced and knowledgeable resource to facilitate dispute resolution.
Mediation in WRC I
The WRC may appoint mediation officers. It may provide a mediation service to facilitate the resolution of employment rights disputes, where possible, at an early stage and without recourse to an adjudication. Participation in mediation is voluntary, and parties are not to be prejudiced by engaging in it. They retain their right to have a hearing. They are not to be disadvantaged in waiting time for more formal proceedings.
Mediation, unlike early resolution service, will be offered to the parties in more complex disputes such as those under Employment Equality Acts or Unfair Dismissal Act claim which require a face to face resolution mechanism. If a compromise or settlement is reached, the outcome is confidential. Matters disclosed in the course of the mediation process are not capable of being used in a later more formal adjudication or inspection process.
Mediation in WRC II
The Director General of the WRC may, where he or she is of the opinion that a complaint or dispute is capable of being resolved without being referred to an adjudication officer refer the complaint or dispute for resolution to a mediation officer. The Director General shall not refer a complaint or dispute for resolution to a mediation officer if either of the parties to the complaint or dispute objects to its being so referred.
Where a complaint or dispute is referred for resolution, the mediation officer concerned may convene a mediation conference for the purpose of resolving the complaint or dispute or employ such other means as he or she considers appropriate for the purpose of resolving the complaint or dispute.
A mediation conference shall
- take place at a time and place determined by the mediation officer;
- be attended by the mediation officer and the parties to the complaint concerned, and
- be conducted otherwise than in public.
Outcome of Mediation
Where a complaint or dispute referred to a mediation officer is resolved, whether by mediation or otherwise, the mediation officer concerned shall record in writing the terms of the resolution. Each of the parties to the complaint or dispute concerned shall if satisfied that it accurately represents the terms of the resolution, sign the record.
The mediation officer shall send the record as so signed to the Director General and give a copy thereof to each of the parties to the complaint or dispute, as the case may be. The terms of a resolution of a complaint or dispute recorded in writing and signed by the parties to the complaint or dispute shall be binding on the parties, and if either party contravenes any such term, the contravention shall be actionable in any court of competent jurisdiction.
The terms shall not be disclosed by a mediation officer or by either party to the complaint or dispute concerned in any proceedings before a court (other than proceedings in respect of the contravention of the terms of the resolution), or otherwise.
Where a mediation officer has attempted (whether by convening a mediation conference or other means) to resolve a complaint or dispute referred to him or her and such conference or the employment of those other means has not resulted in a resolution of the complaint or dispute, the mediation officer shall notify the parties to the complaint or dispute and the Director-General in writing of that fact. The Director-General shall refer the complaint or dispute concerned for adjudication by an adjudication officer.
All communications (including communications during a mediation conference) by a mediation officer with the parties to a complaint or dispute referred for resolution and all records and notes, including records and notes relating to a mediation conference held for the purposes of resolving any matter to which the complaint or dispute concerned relates, shall be confidential and shall not be disclosed in any proceedings before a court (other than proceedings in respect of a contravention of the terms of a resolution).
There is provision for the appointment of adjudicators by the WRC. The adjudication officers were drawn initially from serving officers within the Commission. To some extent, they are equivalent to the Rights Commissioner under the former legislation.
There is to be a diverse panel of adjudicators, including experienced HR and industrial relations practitioners, civil servants with appropriate skills and employment lawyers. The panel is to be established on the basis of an open and transparent competition, run by the Public Appointments Service.
First instance complaints are heard by adjudication officers. Where a case is first referred to a hearing, it is assigned by the Director General to an adjudication officer. Their role is to hold a hearing where both parties are given the opportunity to be heard and to decide the subject matter of the complaint. Certain complaints and appeals may be determined by written procedure, without an oral hearing, with the agreement of the parties.
WRC Adjudication Process
The WRC issues notice of hearing to the parties. If parties do not appear, the WRC may proceed in their absence. If the employer does not appear, the employment, the dismissal will be almost certainly deemed unfair. The onus of proving the fairness of the dismissal is on the employer.
An adjudication officer to whom a complaint or dispute is referred shall—
- inquire into the complaint or dispute,
- give the parties to the complaint or dispute an opportunity to be heard by the adjudication officer, and present to the adjudication officer any evidence relevant to the complaint or dispute,
- make a decision in relation to the complaint or dispute in accordance with the relevant redress provision, and
- give the parties to the complaint or dispute a copy of that decision in writing.
The parties may represent themselves or choose representatives. The matter is not heard in public
The Adjudication Officer may dismiss a complaint, where he or she forms a view that it is frivolous or vexatious. There is an appeal to the Labour Court. In the case of complaints under the Equal Status Acts, the appeal is to the Circuit Court.
WRC Adjudication Process II
An adjudication officer may, by giving notice in that behalf in writing to any person, require such person to attend at such time and place as is specified in the notice to give evidence in proceedings or to produce to the adjudication officer any documents in his or her possession, custody or control that relate to any matter to which those proceedings relate.
A person to whom a notice is given shall be entitled to the same immunities and privileges as those to which he or she would be entitled if he or she were a witness in proceedings before the High Court. If he fails or refuses to comply with the notice, or refuses to give evidence in proceedings to which the notice relates or fails or refuses to produce any document to which the notice relates, shall be guilty of an offence and shall be liable, on summary conviction, to a class E fine.
Proceedings before an adjudication officer shall be conducted otherwise than in public. The Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision (other than information that would identify the parties in relation to whom the decision was made) of an adjudication officer.
Representation in WRC
In proceedings before an adjudication officer in respect of a complaint presented, or dispute referred, the complainant or respondent to the complaint or dispute may be accompanied and represented by—
- a trade union official,
- an official of a body that, in the opinion of the adjudication officer, represents the interests of employers,
- a practising barrister or practising solicitor, or
- any other person, if the adjudication officer so permits.
In proceedings before an adjudication officer in respect of a complaint presented, or dispute referred, the complainant or respondent to the complaint or dispute may, if he or she has not yet attained the age of 18 years, be accompanied and represented by his or her parent or guardian.
Decision in WRC Adjudication
After the completion of the investigation, a written decision will issue within 28 working days, or as soon as is practicable. All parties and witnesses are anonymised, and all decisions are published on its website.
Unlike a court, the adjudicator is not limited to the evidence that the parties offer. The strict rules of evidence do not apply. This is subject to the requirement for fair procedures and the interests of justice. The adjudicator officer and Labour Court seek to maintain fair, speedy, efficient and inexpensive methods of resolution, consistent with basic constitutional justice.
A decision of an adjudication officer consisting of an award of redress shall include a statement of the reasons for the award of such redress and the reasons for the adjudication officer’s deciding not to award other redress.
An adjudication officer may, by notice in writing given to the parties to a complaint or dispute correct any mistake (including any omission) of an administrative or clerical nature in a decision in relation to that complaint or dispute.
Administration of WRC
The Director General of the WRC and Labour Court may strike out cases for want of prosecution. This may be done, only arise where the complaint or appeal has not been pursued for the period of one year.
The Minister may make regulations levying fees and charges on the user of services to be provided by the Workplace Relations Commission and the Labour Court.
The WRC publishes a large database of written reasoned decisions on employment disputes dating back several decades. In WRC cases, all parties and witnesses are anonymised and published on the website.
References and Sources
Employment Law Meenan 2014 Ch. 24
Employment Law Supplement Meenan 2016 Ch.24A
Employment Law Regan & Murphy 2009 Ch.22 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.2
Dismissal Law in Ireland Redmond 2007 Ch.10
Other Irish Books
Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Workplace Relations Act 2015 (No.16)
Industrial Relations Act 1946 (No. 26)
Industrial Relations Act 1969 (No. 14)
Industrial Relations Act 1976 (No. 15)
Industrial Relations Act 1990 (No. 19)
Industrial Relations (Amendment) Act 2001 (No. 11)
Industrial Relations (Miscellaneous Provisions) Act 2004 (No. 4)
Industrial Relations (Amendment) Act 2012 (No. 32)
Periodicals and Reports
Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Principles of Irish Employment Law Daly & Doherty 2010
Termination & Redundancy, What is the law? Hayes, Barry & O’Mara 2005
Termination of Employment Statutes (IEL) Kerr 2016
Termination of Employment: Practical Guide for Employers Purdy 2011
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
Textbook on Employment Law, Honeyball, et al. 13th Ed. 2014
Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
Industrial relations law reports. (IRLR): Law Section,
Employment law Benny R Jefferson M and Sargent 5th Ed. 2012
Pitt’s Employment Law 10th Ed. Gwyneth Pitt 2016
CLP Legal Practice Guides: Employment Law 2016 Gillian Phillips, Karen Scott
Cases and Materials on Employment Law 10th Ed. Richard Painter, Ann E. M. Holmes 2015
Blackstone’s Statutes on Employment Law 2015 – 2016 Richard Kidner
UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
Butterworths Employment Law Handbook 2017 Peter Wallington 2017
Blackstone’s Employment Law Practice 2017 Edited by Gavin Mansfield, John Bowers, John Macmillan 2017
UK Periodicals and Reports
The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016