Workplace Relations Act 2015 – major changes for employers

Areas of change

 

  • Commenced in October 2015, the major changes of the Act are brought not to the content of employment law itself but to how employment disputes or complaints are litigated. The overarching aim of the Act is to streamline and modernise the process.

 

Workplace Relations Commission (WRC)

 

  • A new two-tier system has been implemented: with a new statutory body, the Workplace Relations Commission (WRC), hearing claims at first instance, and appeals heard by the Labour Court. The multiplicity of fora which previously existed have now been abolished. That is to say, the National Employment Rights Authority (NERA), the Labour Relations Commission, the Equality Tribunal, the Employment Appeals Tribunal, and the Rights Commissioners have all been replaced by this new two-tier system.

 

  • Those who acted as Rights Commissioners and Equality Officers at the time of the commencement of the Act will continue as Adjudication Officers in the WRC. It should be noted that there is no requirement for any Adjudication Officers appointed after October 2015 to have any legal qualifications.

 

How to submit complaints

 

  • The Explanatory Memorandum to the Act indicates a desire on behalf of the legislature to encourage greater use of electronic forms and filing. Complaints are submitted via the relevant form on the website workplacerelations.ie under the “Complaints and Disputes” section. Several claims under different statutes can be made on the one form, allowing for all complaints to be heard in the one place at the one time.

 

  • In certain circumstances, the WRC may request written submissions from an employer answering an unfair dismissal claim. The Director General of the WRC may also suggest that disputes are resolved by written submissions only but either party may object to this. Written submissions are required for all employment equality and constructive dismissal claims.

 

  • Unlike Labour Court hearings, WRC hearings are not held in public, and while the Commission may hear evidence it is not taken on oath.

 

  • The Director General of the WRC may also refer a complaint or dispute to mediation. This is done on a voluntary basis and any agreement between parties on foot of a mediation effectively works as a contract.

 

  • The Act seems to be achieving its aim of streamlining the litigation process, with the vast majority of hearing dates being given 2-3 months after a claim is submitted. Commentators have raised questions as to the workability or even legality of some sections of the Act however these have yet to be considered by the courts. In effect, employers will find that hearings are conducted in much the same semi-formal manner as before, but new requirements for written legal submissions may increase the necessity of obtaining legal advice.

 

Powers of inspectors

  • Powers of inspectors have been extended by the Act. In respect of both criminal and civil statutory contraventions, inspectors can now issue compliance notices and, in limited circumstances, fixed penalty notices of up to €2,000. The former may be appealed to the Labour Court and thereafter to the Circuit Court. Inspectors must prepare a report following any inspection and these are admissible in evidence. Therefore, a situation may arise where an employer against whom only one claim under one statutory provision is brought finds himself before a WRC Adjudication Officer who has sight of a full list of all contraventions found by the inspector.

 

Time limits

  • Time limits have been standardised at 6 months from the date of contravention, which may be extended to 12 months where there was a “reasonable cause” for the delay. A different time limit of 12 months applies for Redundancy Payment Act complaints.

 

  • An employer must implement any decision of the WRC within 56 days, following this they may be subject to an order of the District Court on the basis of that decision, who may also order compensation in lieu.

 

  • Appeals to the Labour Court from the WRC must be made within 42 days, with written submissions for the appeal to be submitted within 3 weeks of the filing of the notice of appeal. Decisions of the Labour Court must be implemented within 42 days and are also enforceable by way of an order of the District Court.

 

Appeals

  • Decisions of the Labour Court may not be appealed except for on a point of law to the High Court. The possibility of taking concurrent judicial review proceedings has been somewhat uncertain, but the recent decision of Ms. Justice O’Malley in Department of Education v. Labour Court and Anne Boyle (High Court judgment, 7th March 2015), seems to confirm that while the statutory recourse of appealing on a point of law should be the default, in certain circumstances it is not an abuse of process to issue concurrent judicial review proceedings