Under this legislation a new system for dealing with employee claims/complaints has been introduced. There are some key changes to the process. It is too early to tell how the process will work; however, the fact that disputes can go to mediation as a first step will hopefully reduce the number of cases going to Adjudication and so reduce lengthy waiting periods prior to hearings.
Overview of the Process
Under this new system claims/complaints made since 1st October, 2015 now go to the Director General of the Workplace Relations Commission (WRC) who decides whether the matter could potentially be resolved through Mediation rather than going to Adjudication.
Adjudication
Adjudication Officers (AOs) have been appointed; many of whom worked as Rights Commissioners and Equality Officers under the previous system. These AOs are currently working on claims submitted prior to 1st October last. Additional AOs have also been appointed and trained and they have begun work hearing cases that have come to the WRC since that date.
It is intended that the AO will move away from the more adversarial type of hearing sometimes associated with the previous system. The AOs:
- may refer the matter back to mediation, provided both parties agree;
- inquire into the nature of complaints;
- rule out irrelevant information;
- can subpoena data, documents and/or witnesses;
- may dismiss a complaint if considered either “frivolous and/or vexatious”.
After the hearing the Adjudication Officer prepares his/her decision and it is published on the WRC website. Names are omitted at this stage.
Responding to a Complaint (Tips for Employers)
There is now a single complaint form in place so that complaints about a certain matter under various pieces of legislation are seen together. Here are some things to look out for when viewing a complaint.
Check:
- the date by which a response must be made;
- whether the name of the employer/company on the complaint form is accurate;
- whether the complaint has been made within the required time limits; the time limit is usually 6 months although an extension to 12 months may be given where the complainant shows reasonable cause for the delay;
- how the employer is said to have breached employment law;
- why the employer is said to have done so;
- whether multiple complaints have been made (in which case it may be advisable to prepare separate responses/copy responses for each piece of legislation using the same reference number);
- how much service the employee has and whether this may be relevant to the complaint;
- the employee’s gross salary/wage (and what the total cost to the company could be);
Preparing a Response
- Review the matter by setting out the chronology of events that led to the complaint being made.
- Identify the procedures followed by the Company. Were they followed correctly?
- Who wasinvolved? Obtain an account from all involved.
- There is no obligation on the parties to exchange submissions in advance of the hearing but they may be requested through the WRC.
- The onus of proof in most cases lies with the employer.
- One exception to this is a complaint of Constructive Dismissal.
- Consider asking the AO if submissions may be viewed in advance of the hearing.
- Identify witnesses who will be credible and who will present their case with co
- nfidence.
- Consider what to include in your response on the complaint form and whether to include a lot of
- detail will help your case or hinder it.
- It is advisable for employers to cooperate; otherwise sanctions may result.
The Hearing
- The identity of the AO may not be known in advance.
- The hearing is held privately and usually lasts 2-3 hours approx.
- The parties may be represented by their solicitor, barrister, union representative, HR manager, etc.
- If new arguments are raised during the hearing they may be allowed particularly wherethey are
- relevant to the matter.
- The AO may decide to excuse some witnesses depending on relevance, etc.
Settlements