WHEN THE Minister for Jobs, Enterprise Innovation, Richard Bruton, published proposals for a reshaped workplace-relations structure, they were welcomed by all as providing the basis for a more efficient user-friendly system.
The proposals envisage the creation of a two-tier structure in which all the functions of the National Employment Rights Authority, the Equality Tribunal and Rights Commissioners would transfer to a new statutory body, the Workplace Relations Commission (WRC), along with all the first-instance functions of the Employment Appeals Tribunal.
There would also be a single “second- instance” appeal body formed by integrating the appeals functions of the Employment Appeals Tribunal into the Labour Court. This will assume responsibility for all legal and appellate functions and will act as a court of final appeal in relation to recommendations from the WRC.
It is no secret that the proposals aim to create an adjudication system that is simple enough to ensure legal representation is a choice, not a necessity. It is often said that the biggest difference between employers and employees is that the former can afford legal representation when a dispute arises.
An employee who has been unfairly dismissed faces enormous challenges. Often they will be confronted by teams of lawyers whose sole purpose seems to be unearthing obscure points of law on which drag out a dispute, rather than resolve it.
In the adversarial system, one party usually loses and even the “winner” often does not get what he or she wants. For example, orders for reinstatement – getting your job back as if you were never dismissed – are extremely rare when the unfair dismissal happened over two years previously. Thus, from the worker’s perspective, the emphasis on early resolution, mediation and conciliation is a vast improvement.
The other options are for inspection or a hearing akin to the current Rights Commissioner hearing.
It is essential that the proposed WRC service is independent, professional and impartial. The belief that only lawyers can successfully perform this function is nonsensical.
In The Irish Times on May 7th, Tom Mallon pointed out that employment disputes involve questions of law and implied that only trained solicitors or barristers can handle such cases.
This is untrue. For example, the “first-instance” functions of the Rights Commissioners and Equality Tribunal officers have been successfully carried out for decades by non-lawyers.
Robust and clear criteria can be established with regard to the appointment of experienced and skilled WRC adjudicators, but it would be a serious error to limit the selection to lawyers.
Concerns about the compatibility of the proposals with the European Convention on Human Rights (ECHR) and the Charter of Fundamental Rights are also misconceived.
Article 6(1) of the ECHR states that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. A significant body of case law in the field of Competition Law has confirmed the compatibility with the ECHR of combined inspection and first-instance bodies, once there is some organisational distance between the functions.
Some aspects of the proposals are a cause for concern, such as the operation of the Registration Service and respect for a right to a hearing. Minister Bruton’s proposals indicate that a Workplace Relations Commission Registrar – a lawyer – will be able to dismiss cases prior to hearing.
There is a danger that over-zealousness may result in claimants having to argue their case twice. Provision must be made for appeals against the Registrar’s decisions.
A key mistake in Mr Mallon’s article was the assumption that all existing EAT cases will go to the Labour Court. This is not so.
The first-instance cases (including unfair dismissals) that currently go to the EAT will now go to the Workplace Relations Commission, with only appeals going to the Labour Court. Some 750 cases went on appeal to the EAT in 2010, a far cry from the 6,000-8,000 cases forecast by Mr Mallon.
All the evidence suggests that early intervention in employment disputes has a greater chance of yielding positive results and is far more cost-effective. Ultimately, it brings greater fairness to what can be a very difficult and traumatic process.
Esther Lynch is legislation and legal affairs officer of the Irish Congress of Trade Unions