Workplace Relations Commission is just not working

Change is necessary if the body is to achieve its aim of streamlining and simplifying a complex and confusing array of legal entities, writes Colleen Cleary

Buses sit idle at the Broadstone Bus depot during a strike by Dublin Bus drivers. Picture: Brian Lawless/PA

DUBLIN BUS’S relationship with its employees is making headlines again this week.

From avoiding strikes to increasing productivity and competitiveness, the nature of the relationship between a company’s management and staff is crucial, as is the infrastructure that exists to solve disputes that may arise between them.

If you have an employment law complaint, the chances are you and your employer will find yourself at the Workplace Relations Commission (WRC). This may include a case of unfair dismissal, if you are seeking a redundancy payment, or are alleging workplace discrimination following a return from maternity leave, or have to respond to one.

The WRC has been up and running for a year now, as claims to the previous bodies are being wound up. The Labour Court continues to exist mainly as an appeals body. The Employment Law Association of Ireland, which was set up in 2010, recently conducted a survey to see how practitioners in the area thought the system was operating.

As with most things, unless you are at the coalface, it can be difficult to gauge how the process will pan out until you get there.

However, it seems that even legal and industrial relations advisers who have been working inside the WRC for exactly 12 months are having problems navigating it. This is an issue when still half of the people submitting complaints are unrepresented individuals, which means we have a problem with access to justice.

The survey, published today, has identified significant problems with certain aspects of the WRC and a substantial level of dissatisfaction among practitioners who use it. It’s also important, because it provides the first insight into the WRC, where complaints are heard in private. The research was conducted by Dr Brian Barry, ELAI committee member and lecturer in law at Dublin Institute of Technology.

An ad-hoc approach to case management, inconsistencies with adjudication rulings, and haphazard communication of decisions are all issues that were raised by the barristers, solicitors, employer organisations and trade union representatives who participated in the survey. For example, one in every two practitioners who took part in the survey believes the new two-tier system is worse than the previous one. The rulings of adjudication officers were of particular concern. Two in five are concerned with the quality of rulings, while one in two took issue with their consistency. A further three in five say the format of the WRC’s adjudication hearings are inconsistent, meaning they are unable to advise clients on the most basic issues relating to the format of a hearing.

These findings are important when you contrast them to the experience in the district court or circuit court, where there are clear rules of procedure for evidence.

The suggestion that this is not a legal forum and that the lack of rules provides flexibility is going the other way, causing confusion and a lack of due process. The survey also suggests problems exist with the mediation service, with one in three practitioners believing it does not have sufficient resources to meet demand.

The level of discontent is interesting when one considers that the reason the system of the WRC and Labour Court was established was to streamline and simplify what was seen as a complex and confusing array of legal entities.

However, it has yet to achieve this aim.

If most workplace disputes are to be dealt with in the WRC, then it is vital we ensure the experience is a robust one and that both parties — regardless of the outcome — should feel they have received a fair hearing. A failure to ensure that justice prevails at the WRC will only encourage appeals to the Labour Court, which is in neither party’s interests in terms of costs.

Labour Court

This is a real concern. If Ireland is to be the only English-speaking country in the EU in which to do business, we should have a well-resourced adjudication system that is efficient, not to mention transparent. It must provide a forum for workers to have their employment rights vindicated and supported — rather than frustrate business — and enable both parties to deal with the dispute in hand and move on.

The positive outcome of this research is that we now know precisely where some of the problems lie and steps can be taken by the Government to address them, so that the new system can work effectively and fairly for all users.

Those of us operating in the WRC must be proactive about the challenges we face, not just shout from the side-lines. Looking to the lessons of the last year, we believe there is scope to achieve redress by making changes to WRC rules, and also by securing greater investment in the new adjudication system. One simple and immediate solution is to amend some of the procedures which do not require any legislative change. Only when we achieve this change will we achieve a system that is fit for purpose, one that we can be proud of and ensures access to justice for all, and one which ensures that Ireland is ready to do business.

Colleen Cleary is chair of the Employment Law Association of Ireland

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