Employment law solicitor Richard Grogan of Richard Grogan & Associates.
The legislation under the Workplace Relations Act as regards running cases before the WRC or the Labour Court provides that the WRC shall investigate matters.
Funnily in respect of the Labour Court, the legislation is silent in section 44, but it can be assumed that effectively the Labour Court would apply the same procedures as under section 41 of the Workplace Relations Act as it would apply to the Workplace Relations Commission, namely that they would investigate matters.
That appears to be what the legislation says. However, when you look at the recent case of Minster for Justice Equality and Law Reform applicants and the Workplace Relations Commission respondent and Ronan Boyle and Others the notice party, being a judgment of Mr Justice Clarke delivered on 15th June 2017 under reference 2017 IESC43. In that judgment, while it related to the Equality Tribunal, Mr Justice Clarke at paragraph 7/12 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.”
Significantly at paragraph 7.12 of the judgment, his Honour referred to the fact that the legislation provided for the investigation of complaints and conferred significant investigative powers.
In our opinion, if the matter is inquisitorial, this is a much higher duty on the WRC and the Labour Court than merely investigative powers.
The Labour Court, certainly at the present time, has significant extra investigative powers than the WRC possess. For example, the Labour Court can require an Inspector to go out and obtain records, produce a report and furnish that to the Labour Court, which will then be subject to being examined by the Court and the parties subsequently.
The WRC do not have this investigative power. We believe that this is because of probably sloppy drafting of the Act and that they were supposed to have it. The Labour Court can require witness summonses in all cases including Unfair Dismissal. The WRC do not have the power, particularly in Unfair Dismissal cases. This is an acknowledged defect in the legislation which has not been rectified for over two years.
The very fact that the Supreme Court has stated that the system is inquisitorial is, in our opinion, significant clarification of what the duties of the WRC and the Labour Court are.
How they are going to deal with this is quite frankly beyond us. It is going to require significant additional time and resources, and by that we mean personnel, to move from what is currently fast becoming more an adversarial procedure to this procedure as indicated by the Supreme Court.
Currently in cases, for example under the Organisation of Working Time Act where an employee claims that they did not get their proper rest and break periods, the employee will regularly be met with the defence that the employee must set out the times and dates etc.
When these did not happen, if the approach of the Supreme Court is accepted by the WRC and the Labour Court, then in those circumstances once the employee says that the employee did not get their breaks at the right time (for example indicates that this would happen once or twice a week) then in those circumstances effectively it is over to the WRC or the Labour Court to have an inquisitorial process. This would mean getting the records and going through them.
The issue is whether the WRC and the Labour Court can direct discovery of documentation. In the case of Galway Mayo Institute of Technology, the Employment Appeals Tribunal respond and Helena Pidgeon and Another notice party, being a judgement of Mr Justice Charleton 2007 IEHC210, the Learned Judge in that case did in paragraph 3 of his judgment confirm that effectively in certain cases a Tribunal may need to adopt all the measures inherent in a plenary hearing or a criminal trial.
He went on to state that fundamental to any procedure however it is the duty of the tribunal to identify the issues which it is tasked with deciding and to make available to the parties the means which can be variable whereby they may address that issue. This would appear to indicate that the WRC and the Labour Court are entitled to direct documentation be produced, the type of documentation to be produced and when it be produced.
The decision of the Supreme Court, we believe, has had fundamental implications for how employment law cases in the WRC and the Labour Court going forward are going to be addressed.
We would expect that this issue will be argued sooner rather than later before the Labour Court and this office did make a submission in relation to same on 12th July. In addition a submission was made in relation to the issue of litigation advice privilege before the Labour Court.
A decision from the Court is awaited at this time.
- Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.