The bulk of the Workplace Relations Act (the "Act") came into effect on 1 October 2015. It's a game changer for every employer and worker in Ireland and should make it less complicated for employees to bring claims and for employers to respond to them. It is designed to provide swifter access to justice and quicker resolutions of disputes for everyone.
The objective of the Act is to reform Ireland's workplace relations bodies, delivering a "world-class workplace relations service providing an integrated industrial relations, adjudication and enforcement service which is simple to use, independent, effective, impartial, cost-effective and provides for workable means of redress and enforcement, within a reasonable period".
This Act forms part of the Government's stated aim to make Ireland the best small country in the world in which to do business. The idea is to simplify and streamline workplace disputes procedures and bodies.
At the moment, depending on the type of workplace dispute, an employee may have to take their case to one or more of the Labour Relations Commission, the Equality Tribunal, a Rights Commissioner, the Employment Appeals Tribunal ("EAT") or the National Employment Rights Authority. Each of those bodies currently has different procedures for appeals (i.e. you appeal a decision of the EAT to the Circuit Court and appeal a decision of the Equality Tribunal to the Labour Court) and have different limitation periods for taking cases (i.e. 6 months after the event).
In harmonising and de-cluttering the current system, the Act provides a single gateway for employment disputes in Ireland and replaces the current maze of tribunals and courts. From now on all employment disputes - everything from unfair dismissals and discrimination claims to working time issues, pay claims and any industrial relations issues - will be referred to the newly established Workplace Relations Commission ("WRC") in the first instance. There is now one appeal body and that is the Labour Court.
Contrast this against the current system where the EAT sits in a panel of three with appeals going to the Circuit Court and the Equality Tribunal acts as a single decision maker with appeals going to the Labour Court.
In short, it is a welcome streamlining of what was a complex and confusing process.
Time Limits to bring Claims
Limitation periods for the referral of a dispute under any employment or equality legislation will be standardised to six months. This can be extended to twelve months where "reasonable cause" can be shown.
The Act encourages mediation and the early resolution of disputes as close to the workplace as possible and without the need for parties to have to resort to formal adjudication where possible.
An Early Resolution process is currently being trialled. When a complaint arrives at the WRC it may be referred to a mediation officer if it is deemed suitable for early resolution. If so, and if both parties agree to it, then a mediation conference (potentially held over the phone) will be convened. Any resolution arising from this will be binding on the parties and enforceable in the Courts.
Adjudication of Disputes
If early resolution is not deemed appropriate, is refused by the parties, or if an attempted mediation is unsuccessful, a dispute will be referred to a single adjudicator at the WRC.
This process is envisaged as being more inquisitorial than adversarial - the hearing will be held in private and evidence will not be on oath. Representation (legal or otherwise) will be allowed, but there are no references in the Act to the examination or cross-examination of witnesses.
All decisions of adjudicators will be published on the internet on an anonymised basis.
Discovery / Witnesses
An adjudication officer can require the attendance of a witness and/or the production of documents relevant to the proceedings. It is envisaged that this will be enforced more vigorously than in the EAT.
From now on, any appeal from a decision of an Adjudicator will simply go to the Labour Court in all instances. The Labour Court hearings will be public and decisions will be published in full, unless special circumstances arise.
Decisions of the Labour Court can then be appealed to the High Court on a point of law only (rather than rehearing the entire case).
The Act also allows for the determination of disputes (at adjudication and/or appeal stage) based on written submissions alone, rather than by way of a full oral hearing. However, either side can object to this.
New procedures are to be implemented for the enforcement of awards of an Adjudication Officer or the Labour Court through the District Court.
The Act goes far beyond simply reforming processes and procedures. In order to promote higher levels of compliance with employment and equality law, employers can now be penalised with "on the spot fines" (with the possibility of imprisonment) for breaches of employment law:
Where a WRC inspector is satisfied that an employer has contravened specified sections of employment legislation in the Unfair Dismissals Act; Payment of Wages Act; Maternity Protection Act; Terms of Employment (Information) Act; Organisation of Working Time Act; Carer's Leave Act; or Protection of Employees (Temporary Agency Work) Act they may issue the employer with a Compliance Notice.
The Compliance Notice is essentially a direction from an inspector to an employer to do or refrain from doing certain things. If an employer believes they are compliant with the relevant legislation, they may appeal the Compliance Notice to the Labour Court.
Failure to comply with a Compliance Notice will be an offence and on indictment may result in a fine of up to €50,000 or imprisonment for up to 3 years for the employer concerned.
Fixed Payment Notice
Where a WRC inspector has reasonable grounds for believing that an employer has committed an offence under the Protection of Employment Act; Payment of Wages Act; or National Minimum Wage Act, they may issue the employer with a fine or "Fixed Payment Notice" which may not exceed €2,000.
This in some respects could be viewed as a plea-bargain; if the employer agrees to pay the Fixed Payment Notice within 42 days the WRC will not prosecute the relevant offence.
There is no option to appeal a Fixed Payment Notice. If an employer disputes it, they would simply not pay it and defend the resulting prosecution.
For the first time, the Act gives the Minister for Jobs the power to charge fees to employees wishing to bring claims against their employer. However, fees were introduced recently in the UK and this has been criticised by some commentators as a barrier to justice for employees.
While there are no plans to introduce blanket fees, it has been suggested in recent Dáil and Seanad debates that where a party fails to appear at an adjudicator hearing without good cause and wishes to appeal the decision to the Labour Court, that party will have to pay a fee of €300 when lodging its appeal. If the Labour Court determines that the party in question had good cause for failing to attend the first-instance hearing, the fee will be refunded.
No decisions have yet been made, but a relatively broad power has been granted to the Minister.
Sharing Information on "rogue" employers
The Act allows for increased sharing of information on employers who are in breach of employment law between various state agencies. This would allow the WRC to potentially share PPS numbers, ERN numbers and any other relevant information regarding non-compliant employers with the Revenue Commissioners, the Gardaí, the Director of Corporate Enforcement, the Health and Safety Authority, the Pensions Ombudsman and HIQUA, among others.
A notable inclusion in the Act allows the WRC to contact any public contracting authority which awards public works contracts and inform that body of a breach by a contractor (or sub-contractor) of any relevant legislative provision. This may exclude certain employers from being considered for certain public tenders, or may result in payments under an existing contract with a public body being withheld pending compliance with the relevant law.
1Minister of State for Business and Employment, Gerald Nash TD, 4 February 2015