Richard Grogan on employment law: Trends in adjudication officers’ decisions
Employment law solicitor Richard Grogan of Richard Grogan & Associates identifies trends in adjudication officers’ decisions.
There are some trends which we are seeing.
First. There appears to be a considerable number of claims under the industrial relations legislation.
The unfortunate issue however is that these claims are not enforceable and are binding on neither employers nor employees. We have covered this in previous issues of our newsletter, Keeping In Touch.
Second. We are seeing a significant number of claims being brought by employees under the wrong Act. For example, holiday pay being claimed under the Payment of Wages Act.
Third. We have identified a divergence in decisions as regards the tax treatments of matters which are identical but where different tax treatments are afforded.
Fourth. We are seeing situations where financial loss is being amalgamated with the general compensation which therefore, under the Taxes Consolidation Act 1997 as amended, results in the entire award being subject to tax - whereas if the amounts were split between compensation and monetary loss as separate amounts, a global figure could then be given as to what they add up to and would be exempt from tax as regards the compensation element.
Fifth. We are seeing cases where some Adjudicators are treating section 44 of the Workplace Relations Act as strictly limiting claims to within six months of the date of referral, whereas others as applying the issue of a continuing breach. There appear to be some inconsistencies.
Sixth. There are a considerable number of constructive dismissal claims being brought, with very few of them being won. We believe that this is because a lot of employees do not understand the high bar that they must reach to bring a constructive dismissal claim.
Seventh. It is unfortunate but there appears to be a considerable number of claims under the redundancy payment legislation which are being brought and which are not even being defended by the employer.
We believe that this may be because of the fact that there is no significant benefit to an employer actually paying redundancy when it comes due. Under the old system where there was a rebate, the rebate could only be claimed by the employer where they had made the payment. If they did not make the payment under the Redundancy Payment Acts and the claim had to go to the Department, the Department would then pay the redundancy but would seek the full repayment from the employer without any rebate.
Eighth. We are seeing again a significant number of cases which are being dismissed for want of prosecution where the employee is not attending.
It would be useful if some information could be furnished in respect of these claims in particular whether they go in online and at what time of the day they go in online. Because it is now an online form, effectively any disgruntled employee can put in a claim if they wish in the middle of the night.
We have no difficulty with this but where parties do not attend, time has been allocated and the opportunity for somebody else to have their claim dealt with more quickly is lost. It would be our view that it would be beneficial if there was some procedure put in place whereby parties would be required to confirm their attendance. It might simply be done by sending an employee an email or letter or their representative requesting confirmation that the claim is proceedings and advising that the claim will be listed until such confirmation is received.
Ninth. There are some very positive issues arising from the decisions. Practitioners are now getting a significant number of cases issuing which can be reviewed for the purposes of setting a view as to how the Workplace Relations Commission will address matters and the approach being taken by Adjudicators.
Tenth. The quality of some of the decisions, even those that we may disagree with, is very high. It is quite evident from the decisions issuing that the basis under which decisions are being reached are being set out in the vast majority of cases in detail. This is a significant benefit. It will become more beneficial when the system is upgraded so that these decisions can easily be searched.