The WRC do not follow procedures.
Well of course they follow procedures. However, they follow the wrong procedures.
In relation to the case of Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Síochána Applicants, the Workplace Relations Commissions, Respondent and Ronald Boyle and Others, Notice parties. The then Mr Justice Frank Clark now chief Justice Clarke delivered the decision of the Supreme Court on the 15th June 2017.
In that case at Paragraph 7.12 of the judgment it was stated;
‘‘In that context it is also said, correctly so far as it goes, that the procedure before the Tribunal is inquisitorial whereas the procedure before the High Court is adversarial’’
The relevant Legislation being the Workplace Relations Act 2015 in Section 41(5) sets out that an Adjudication Officer shall;
‘‘ (i) Inquire into the complaint or dispute.
(ii) 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 provisions…’’
That is no the procedure being applied by the Workplace Relations Commission.
The procedures adopted by the WRC are in effect adversarial. The party bringing the complaint or the Respondent to the complaint are required to give evidence. That evidence can be dealt with by way of examination and cross-examination. The Adjudication Officer can of course ask questions. However, they do not operate an inquisitorial process.
The Labour Relations Commission was a pure inquisitorial process. There was no examination and cross-examination. The Rights Commissioners heard the case. They listened to the arguments on both sides. If there was evidence to be given they would ask the questions. If there was questions that needed to be asked of a particular witness for an employer or employee they would often allow the representatives ask their client the relevant question. If it came to cross-examination however, that cross-examination was undertaken by the Rights Commissioner with the representative of the other party asking the Rights Commissioner to put certain questions.
In the Equality Tribunal they operated an inquisitorial process as well. The Equality Officer would have read the submissions. They would come in with a list of questions. If there was any question that a party believed had not been put to them they could say it themselves or their representative could ask that their client would give evidence on a particular matter. Some cross-examination was allowed but only to the extent that a matter had not already been covered by the Equality Officer and even then it was not cross-examination as normally dealt with. It was matter for the Equality Officer to decide to what extent any cross-examination would be required.
In the WRC we have a situation where they have rules that say documentation should be produced in advance. It is not. The reality of matters is that in a minority of cases the Adjudication Officer has read the documentation in advance. There is no question of an Adjudication Officer opening up matter, with a few exceptions, by seeking clarification on matters or raising questions themselves. It is run very much as an adversarial system.
In an adversarial system in the High Court or the Courts generally a party who wins their case will get their costs because of the fact they incurred the expense of getting representation. In the WRC they contend that representation is not necessary yet at the same time they run a full adversarial system.
The Legislation governing the WRC is very clear it requires the Adjudication Officer to inquire into matters. This is the view taken by the Supreme Court that this is an inquisitorial process.
Despite what is in the Legislation and a Supreme Court decision the approach of the WRC is effectively to ignore both the Legislation and more importantly more so the determination of the Supreme Court as to what process they are to apply.
Effectively the approach of the WRC is to give two fingers to the Legislation and to the jurisprudence of the Supreme Court.
There is a small minority of Adjudication Officers who apply the inquisitorial process. They are people who have read the submissions in advance, and are coming in seeking the relevant information on which to make a decision. Even those Adjudication Officers can be frustrated at times due to the fact that parties do not lodge their documentation in time.
Some Adjudication Officers take the view that it is a matter for them to set out the procedures which are going to apply and by that we mean effectively an adversarial process. Others contend that it is a matter for the employee to set out their claim in full detail rather than having to have them investigate an inquiry into the process. The majority of the Adjudication Officers take the view where there are records that that is a matter for the other party to highlight where there may be any defects rather than the Adjudication Officer themselves to go through the documentation.
When the Employment Appeals Tribunal was originally formed it was on the basis that it would be a lawyer free zone. The EAT became a lawyer zone.
When the WRC was being formed the then Minister announced that this was going to be a world class service. Many of us took that comment on face value. We were told that there would be a research facility and there would be clear guidelines and documentation so that effectively lawyers would not be needed as it was going to be this leading-edge process. What we have received is a third world service.
There are no comprehensive guides. The guides which are produced by the WRC on the law have a nice disclaimer provision in it. They take no responsibility. They have a help number that people can phone but again they take no responsibility if they get it wrong, and often their advice is wrong. There is no comprehensive research facility in relation to decisions. The Labour Court before the WRC highjacked their website had a very comprehensive and well thought out website. You could check cases by name or by section or even subsection of particular Sections of an Act or if you knew even the names of the representative you could check matters. No such facility is in the WRC. What they have is a list of decisions that come out on various stages that are of a limited value to try and research down by way of Act and certainly they do not cover matters by way of Section and Subsection.
The whole issue in relation to how cases in the WRC are run is highly questionable. We have said that they have effectively given two fingers to the Legislation and to the Supreme Court. The reality is that that is exactly what they have done. They do not operate an inquisitorial process. Their procedures are adversarial. Examination and cross-examination are the order of the day.
We make no bones about matters but that we are looking for the right case to bring to the High Court and if necessary up to the Supreme Court on this issue. The WRC cannot be allowed in a situation where they disregard the Legislation and they disregard the decision of the Supreme Court. They are allowed set out their own procedures. Any Tribunal is entitled to do so. However, they cannot do so in an excess of the Statutory provisions. That means that they cannot impose their own will to have an adversarial process when the Legislation provides for an inquisitorial process.
We will see how matters develop but the right case is going to result in a judicial review of the WRC. If we are right then the WRC is completely wrong and will mean that they will have to completely change their procedures to comply with both the decision of the Supreme Court and the Legislation. Even if the Legislation is changed it is difficult to see how it could be without providing for Legal Aid and equally in an adversarial process for a completely different procedure to include issues such as discovery.
It will be interesting to see how matters develop. We do not of course blame the Adjudication Officers who are in a very difficult position.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.