Oireachtas Joint and Select Committees

Tuesday, 6 November 2012

Joint Oireachtas Committee on Jobs, Enterprise and Innovation

Workplace Relations Service: Discussion with Employment Appeals Tribunal

1:30 pm

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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The purpose of the next part of the meeting is to engage in a discussion with representatives from the Employment Appeals Tribunal on its response to the report of the Department of Jobs, Enterprise and Innovation, Blueprint for a New Workplace Relations Service. I welcome from the Employment Appeals Tribunal Mr. Noel Dowling, chairman; Mr. Peter O'Leary, vice chairman; Mr. John Horan and Mr. Jim Dorney, both lay members. I apologise for the fact that we were obliged to keep our guests waiting.
Before we begin, I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable. By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of their evidence to this committee. If they are directed by it to cease giving evidence on a particular matter and continue to do so, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not criticise or make charges against a person or an entity by name or in such a way as to make him, her or it identifiable.
I ask Mr. Dowling to make his opening statement on the report of the Department of Jobs, Enterprise and Innovation, Blueprint for a New Workplace Relations Service.

1:35 pm

Mr. Noel Dowling:

I thank the Chairman and members of the joint committee. I am chairman of the ad hoc committee of the Employment Appeals Tribunal and accompanied by Mr. Peter O'Leary, vice chairman of the tribunal for the past 27 years; Mr. Jim Dorney, lay member and nominee of the Irish Congress of Trade Unions, ICTU; and Mr. John Horan, lay member and nominee of the Irish Business and Employers Confederation, IBEC. I, too, am a lay member of the tribunal, a nominee of ICTU.
This is our first opportunity to discuss our concerns about the proposed reforms of workplace relations. I intend to keep my remarks brief to allow for maximum questioning by the committee. We have forwarded a copy of our submission in response to the Minister's document on strengthening the workplace relations service, as well as an executive summary. Today we are concerned only with unfair dismissals and post-employment situations, not the overall proposed reforms of industrial relations.
By definition, those who are yet to be unfairly dismissed are not in a position to speak for themselves and someone must say something on their behalf. In all modesty, we believe we are best placed to do this, as we deal with the issue of unfair dismissals every day. Our primary concern is that we have a system in place that vindicates people's rights where they believe they have been unfairly dismissed and that they can have a fair, efficient and public hearing. As well as vindicating the rights of claimants, it is also important that the rights of employers are vindicated in cases in which they are unfairly accused of unfair dismissal and have the opportunity to preserve their reputations.
We agree that in these straitened times it is timely and right that the system in place for adjudicating on employment rights and industrial relations issues be reviewed. We believe the an bord snip recommendation to rationalise the number of industrial relations institutions is a legitimate exercise which we support. After 40 years in place, there is no reason they should not be examined. We are a little concerned, however, about the third motivation behind the Minister's intent to reform the unfair dismissals hearing process which has been stated in public on several occasions of lightening the regulatory burden on employers. Some have read this as meaning the intention is to make it easier for employers to dismiss workers. I do not know whether that is the case, but the danger of being motivated on that basis is a little like what happened with deregulation in the financial sector and in the construction industry in cases such as Priory Hall. The danger is there will be unforeseen consequences in doing this.
The Minister and others on his behalf have spoken about the need to de-legalise the unfair dismissals procedures. Taking the legal people out of the unfair dismissals process will have unforeseen consequences and, paradoxically, could lead to an increase in their input in the process. Those who are deprived of their livelihood through an unfair dismissal have a grave sense of injustice about what has happened to them. The consequences of losing one's job are horrendous, but the consequences of being dismissed unfairly are even more so. There tends to be a certain stigma attached to being dismissed. I know people who would prefer a short custodial sentence rather than suffer the fate of being dismissed unfairly. Being dismissed unfairly can also have serious consequences in the current climate of high unemployment and be a burning injustice in a person's life for a long time.
The Minister proposes to do away with the Employment Appeals Tribunal and have all unfair dismissal cases heard in the first instance by a single adjudicator. The first document produced by the Minister suggested the adjudicator would be drawn from the ranks of the Civil Service and receive between eight and 12 weeks training. We have pointed out that many of the cases we hear involve complex legal arguments. Unfair dismissals cases, unlike other employment issues such as redundancy, do not involve simple single issues but take in a wide range of law matters. An unfair dismissals case, for example, could involve contract law - whether the person involved is on contract of or a contract for service - which introduces complex questions in the process.
The Minister proposed in his first document that the new registrar of the workplace resolution committee would have the right to adjudicate in private on cases and weed out those he or she thought to be frivolous or out of time. We have pointed out that this is a judicial process and one person cannot make such decisions without a hearing. In fairness, the Minister took on board some of this criticism.

In the second document the reference to the powers of the registrar is removed and the Minister recognises that a case would have to be heard. However, in respect of the adjudication body, we pointed out that between eight and 12 weeks training was simply not feasible. Given the complexity of the law involved in these cases, one needs not only legal input from the chairman or vice chairman but also legal input with a good deal of experience behind it, rather than simply legal input from someone with a qualification straight out of college. The second proposal seems to nod in that direction, but it has made the situation more confusing. Now the Minister is proposing that an unfair dismissal case will be heard in the first instance by a single adjudicator. However, the single adjudicator will be drawn from a panel made up of civil servants who will receive appropriate training; ex-rights commissioners who are to be abolished as part of this process; and members of the Equality Tribunal who are to be dispensed with as part of the current reform process. In addition, as a result of taking on board our concerns, they have added a proposal for an external panel made up of legally qualified people, people with industrial relations expertise and people with human resources expertise. We have moved to a large constituency from which to draw, but nowhere in the document is it suggested who will decide on the appropriate single adjudicator from this wide panel to hear an individual case. It seems that depending on a given case, an individual might be lucky enough to have a very experienced legal person which might reflect the gravity of the case, but someone else might be unlucky enough to have someone who received only eight or 12 weeks training. This appears to be ultra vireswith respect to the European Convention on Human Rights, the Charter of Fundamental Rights and the Constitution. Others on the panel will refer to this issue, but our lawyers have pointed it out to us.
Our argument is that the Employment Appeals Tribunal is an ideal way to hear cases in which the consequences can be so grave. Why is this? It is made up of experienced legal personnel, acting as the chairman or vice chairman, and lay people, including one person from the employer side of industry and one from the employee side. Usually they bring between 30 and 40 years of experience to play on the facts of the case and the chairman is the person with the legal expertise. The committee will be aware of this tripartite model from other democracies. In the Nordic countries this model has been extended to the area of criminal law. The committee will recall the Anders Breivik case in Norway. That is considered to be a better form of justice, rather than this proposal to go back to a single adjudicator, with a right of appeal to a new division of the Labour Court. The tribunal system is a more cost-effective one because what has been proposed to replace it would be made up of permanent staff with civil servant status. They would attract Civil Service wages and everything that goes with it. On the other hand, members of the tribunal are not entitled to, nor are we looking for, annual leave, sick leave, holidays or pensions. If someone decides to reorganise us, they will not need to spend a great deal of time negotiating a decent redundancy scheme with us because we simply convene on a needs basis. We only come into existence when a case is before us and then we are finished. I do not believe one could get a more cost-effective system and one of my colleagues has figures to demonstrate this.
We hold another concern about an aspect of the single adjudication. Under unfair dismissals legislation, as it stands, the tribunal or a rights commissioner can award up to twice a claimant's annual salary by way of compensation for unfair dismissal. We often deal with sums between €200,000 and €300,000. The District Court is restricted to awards of up to €6,600 and the Circuit Court to awards of €38,000. The suggestion that all of the legislation, especially unfair dismissals legislation relating to the post-employment situation in which one could have awards of between €300,000 and €400,000, be dealt with by a single adjudicator seems to fly in the face of established jurisprudence and the purpose of the statutory bodies set up to deal with these questions. It is strange to propose this.
I have referred to the fact that the tribunal is flexible. There is a role for a properly constituted hearing before a tribunal such as the Employment Appeals Tribunal. The tribunal could be easily integrated into the new proposals of the Minister for a workplace resolutions committee. Therefore, it could benefit from the synergies and savings that might be made on the administrative side. It would be a good thing. This is not a special plea. We are not trying to stand out on our own making pleas on our behalf. I have been appointed for a period of five years, after which I will be gone. Some two and a half years of that period has already passed. Others have been appointed for three years. No one is trying to hang on to a lucrative job. I had intended to bring along a pay slip to pass around to members of the committee to see whether I could impress them with the earnings, but I will answer questions about it. I do not dismiss that, but I know my colleagues and I do not do it for the money; we do it to try to put something back by way of the experience we have gleaned in our respective careers.
We suggest the Employment Appeals Tribunal, a tripartite tribunal made up as it is, be integrated into the new system and that savings could be made in this respect on the administrative side. It is a better and cheaper system. It is the system operated in Britain and other jurisdictions. Some of us believe a first instance hearing should be held by a properly constituted tribunal that has respect for the rules of natural justice and the rules of evidence. There is a case to allow for privileged evidence to be given to a tribunal. This would mean people would be allowed to say what they liked under privilege. Unlike the proposed arrangement involving a single adjudicator, such a set up would obviate the need for an appeal to the Labour Court and to set up a whole new division of the Labour Court. That would run the risk of mixing up industrial relations with rights-based issues. The Labour Court was set up for an entirely different purpose. That would suffice and an appeal should only be made to the High Court on a point of law.
I advise the committee that there are other legal opinions. It will appreciate that there are always other legal opinions and that no matter how many times one gets a legal opinion, one will always receive another from someone else. Another legal opinion holds that there must be an appeals mechanism in place.

A claim for unfair dismissal could be referred to a rights commissioner, but it is usual for the other side - usually the employer - to object. Traditionally, employers have objected to single adjudication cases, so much so that, historically, 40% of unfair dismissal claims have been heard by rights commissioners and 60% by the Employment Appeals Tribunal. Of the 40% heard by rights commissioners, 12% were referred on appeal to the tribunal. However, if the employer did not raise an objection, a claimant could have a hearing before a rights commissioner and the employer or the claimant could then appeal the decision to the tribunal and either side could appeal the subsequent decision to the Circuit Court. This means there could be three de novohearings at which the facts would be heard again. I respectfully suggest that not even in murder cases does one have the opportunity to run a case three times over. There is no need for this. A sufficient arrangement should be having one hearing by a properly constituted body such as the Employment Appeals Tribunal followed by an appeal to the Circuit Court.
I make my final point with regret. It appears to us that there is an attempt to change the facts in advance of the democratic debate on this subject and the consideration by the Houses of the Oireachtas. For example, as I have explained, 60% of cases were heard by the Employment Appeals Tribunal and 40% by rights commissioners. Since the establishment of the Workplace Resolution Commission, WRC, those figures have been reversed. Now 60% of new cases are being heard by the Rights Commissioner Service and 40% by the tribunal. It is a question of how this reversal has happened so suddenly. It appears that the WRC website refers to the tribunal as being, in the main, an appeals body. Notwithstanding its name, it is not merely an appeals body. It heard 60% of first instance cases and nobody knows this better than the people who designed the website. Under the new regime, the WRC has established a single complaints form to replace the myriad complaints forms. However, we recently had a case and can provide the documentation, if necessary. A young person filled in the single complaints form and sent it to the Labour Relations Commission and the Rights Commissioner Service, as is the obligation. The Labour Relations Commission informed the claimant that because the employer had objected to the hearing of the case by a rights commissioner, the file had been closed but that the claimant could appeal the case to the Employment Appeals Tribunal. However, the claimant was not informed of how to go about mounting an appeal. The claimant's representative instructed the claimant to telephone the Labour Relations Commission to request that the much lauded original single complaints form be forwarded. It responded that this was not possible as a different form was required. When the representative telephoned the relevant department, now based in Carlow, to ask whether a separate form was required, he was informed that it did not know and no information was forthcoming. It is somewhat disconcerting to find that in advance of democratic debate and a decision, there is an attempt to change the facts. This will inevitably lead to litigation which should be avoided.
That is a summary of the position. I again thank the committee for giving us this opportunity. My colleagues are anxious to deal with questions from members.

1:55 pm

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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I thank Mr. Dowling for his detailed summary.

Photo of Dara CallearyDara Calleary (Mayo, Fianna Fail)
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I wish to declare an interest in that I commissioned the original business review when I was Minister of State with responsibility for labour affairs. I noted the query in the written submission about the reduction of resources in the Employment Appeals Tribunal. I checked with the Department and I am informed that the number of administrative staff at the tribunal had increased from 33 in 2008 to 44 in 2011 when I finished.

Mr. Noel Dowling:

I am happy to acknowledge that fact. The number of staff increased by 80%.

Photo of Dara CallearyDara Calleary (Mayo, Fianna Fail)
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I make that point by way of clarification in case officials in the Department were inclined to ignore me, but Ms Kate O'Mahony was not ignored.

Mr. Noel Dowling:

The Deputy is correct. However, on the other hand, the caseload increased by 300%.

Photo of Dara CallearyDara Calleary (Mayo, Fianna Fail)
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Mr. Dowling suggests the delay in hearing cases does not reflect a fault in the current structures but rather is directly due to the failure to provide the Employment Appeals Tribunal with adequate resources. He also points to the increase in the number of hearings. I pay tribute to Ms Kate O'Mahony, the former chairperson. If civil servants were inclined to ignore me, they certainly were not going to ignore her. I can vouch that the tribunal is certainly not a gravy train. All members, both independent employers and union members, have given significant service for very little thanks during the years.

Mr. Dowling has raised a number of procedural points to which the Minister, Deputy Richard Bruton, has responded. He has dealt in detail with many of them. I wish to clarify that when we cut every other element of the Department's budget, the Employment Appeals Tribunal was given an increased number of staff. I wish to include Mr. Francis Rochford in my appreciation of the work of the tribunal.

The Minister has handled this matter very well. He has engaged with all relevant parties. Nobody wants to see what Mr. Dowling referred to as a "de-legalising" of elements of employment law. There is no doubt that the burden of regulations affects those in employment and also those who are out of employment in that employers are scared to employ people. We have to devise a user-friendly system for use by small employers who do not have a large human resources section. This is the challenge when designing a system. I will not speak for the Minister, but our intent was not to de-legalise but rather to look at the administrative burden imposed by employment law - the entire body of law for this sector - to identify the factors standing in the way of business and the provision of employment, which is everyone's business at this time. It was a tripartite effort, but it is not happening as fast as I would like. However, there was never a question of taking away rights or de-legalising the system.

The Minister has provided a detailed response on the point of having a single hearing, which is the practice in many inequality complaints cases. The Minister and his officials have done a very solid job in tackling what has been a problem for the past ten to 15 years. I also acknowledge the work of the delegates and the service they have given to the Employment Appeals Tribunal. I agree entirely with Mr. Dowling's proposition that in the talk about quangos and gravy trains the tribunal was never considered to be such a body.

Photo of Peadar TóibínPeadar Tóibín (Meath West, Sinn Fein)
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I thank the delegates for their interesting presentation. This is a very important piece of work. I welcome the creation of a mechanism to ensure fair treatment for all employees and provide a means for employees to seek justice when they are not fairly treated. Sinn Féin has made a detailed submission on the issue, focusing on aspects such as trade union recognition, redundancies and pensions. I have some concerns.

In every system a person must have the right to appeal. In the course of the document it states that the Labour Court would examine if the claim is sufficiently meritorious to proceed to an appeal hearing. I wanted to hear the views of the witnesses on that issue. Compliance is another very important issue. As elected representatives we have all spoken to individuals who have rights in legislation but because of compliance and enforcement have not experienced the fulfilment of those rights. Will Mr. Dowling outline his views on that issue?

Mr. Dowling made the interesting point that there seems to be a reversal between the Employment Appeals Tribunal and the rights commissioners in advance of debate and the democratic decision making process. From what direction is the reversal coming?

2:05 pm

Mr. Noel Dowling:

I will respond to Deputy Calleary and I will ask one of my colleagues, Mr. John Horan, to comment on the staffing.

I will deal with the lightening of the regulatory load and how it might impact on competition, jobs and so on. Nobody is opposed to examining options to improve the possibility of creating jobs and sustaining more jobs in the country. A previous Government felt the same way about deregulating the financial services and construction sectors. In both cases, we have suffered the consequences. The development at Priory Hall is a good example of deregulation, to make it easy to increase activity in the industry, which it did but some of the other consequences have not been great. There can be unforeseen consequences when the regulatory burden is eased. We need to be careful about making these changes.

I acknowledge that during Deputy Calleary's term of office, there was a report on the mechanism of the Employment Appeals Tribunal. I have never seen that report and I am not too sure anybody else has. If it is available I would be delighted to have a copy.

Photo of Dara CallearyDara Calleary (Mayo, Fianna Fail)
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I was unfairly dismissed before we got a chance to implement it. I did not go to the rights commissioner.

Mr. John Horan:

If Deputy Calleary feels that he was unfairly dismissed, I suggest he gets his claim in quickly before the new system comes in, because he is guaranteed a good hearing under the existing system.

In terms of the increase in staff numbers from 33 to 44, let me explain the system for the benefit of members who may not be as familiar with it as Deputy Calleary. The Employment Appeals Tribunal works on the basis that it sits in divisions. A division comprises three persons, a person with a legal qualification, somebody nominated by the Irish Congress of Trade Unions and somebody nominated by an employer body, and is supported by a secretary from the staff. A division cannot sit without somebody from the secretariat. The number of staff in the secretariat is a limiting factor.

Deputy Calleary referred to the increase in staff from 33 to 44, which is an increase of one third, or 33%, however, our belief is that the staff in the period increased by 18%. Let us not argue about the percentage increase because in the three-year period from 2007 to 2009, the number of claims lodged increased by 300%. The increase in staffing is not sufficient to deal with the deluge of complaints that are coming in. That is the reason we now have a backlog. It is not because the members of EAT are not willing to work, as we are called on to work on average one day a week. As the chairman points out, we get a fee for that day and that is the total. We could work two days a week and double the output but the secretarial service is critical and we cannot do it without secretarial support.

Let me give members a breakdown of our cost. On average, the cost of the three of us works out at €198 per case processed. We are a very low-cost, effective body. If we are not doing our job properly, our decisions will be appealed to various bodies. For example, in the last year for which we have full figures, 2010, the Employment Appeals Tribunal processed 6,064 cases, and not one of those cases was sent for judicial review. Of the 6,064 cases, one was appealed to the High Court on a point of law seeking a particular clarification, a small percentage was appealed to the Circuit Court and as far as we are aware, none of our decisions was overturned. We are lean and mean but an effective machine. That arises out of the breadth of experience and background of the members of the tribunal. We have the legal expertise in addition to the experience of people who have worked in industry, either in human resources or industrial relations. That is what we bring to the party.

We have been hit with a massive deluge of claims which arises from the difficult economic circumstances that employers and ultimately employees have found themselves in since the economic downturn. We are dealing with a significant number of cases and doing so effectively. With additional resources we could do even more. Without in any way wanting to usurp the plans of the Minister for Jobs, Enterprise and Innovation, Deputy Richard Bruton, we believe by using the Employment Appeals Tribunal, he could incorporate the best elements of the existing system in the new system. That would be to the benefit of employees and employers alike.

Mr. Noel Dowling:

I will now respond to Deputy Tóibín's questions. In response to his question on the direction from which comes the attempt to change the rules on the ground in advance of the democratic debate, I can only assume they are coming from the quarters that are charged with drafting the new regime. Whether it is accidental or not, I do not know. The reference on the website would be unusual if it was included purely by accident because the people who are charged with it would know all the details of how the tribunal functions.

The Deputy also asked about the vindication of rights and whether people are aware of their rights. As a trade unionist I would say that in the absence of more trade unions and the State making it easier for people to be in trade unions, a great many people are not aware of their rights, but the chairs of the tribunals bend over backwards to be helpful to the claimants who come before it, unaware of how to argue their case. Every effort is made to help people who find it difficult to present their case. It is not a case of being accused of leading the witness. Although it is a quasi judicial process, it works in a more informal way.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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I now call Senator Quinn and Deputy Collins.

Photo of Peadar TóibínPeadar Tóibín (Meath West, Sinn Fein)
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I ask questions on not having a right to ultimate appeal and having somebody decide whether it is meritorious to appeal.

Mr. John Horan:

Is Deputy Tóibín referring to the original blueprint document?

Photo of Peadar TóibínPeadar Tóibín (Meath West, Sinn Fein)
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Yes.

2:15 pm

Mr. Noel Dowling:

The Minister's position in this respect has changed a little and obviously this is a work in progress. It is wrong in that one cannot have a person deciding on whether a case is meritorious in advance of a person having the opportunity to have his or her case heard. I referred to the European Charter on Human Rights which provides that a person is entitled to a hearing. While having a person look at cases and say that a case seems frivolous might recommend itself in terms of making it easy to deal with cases how can one decide that without giving the claimant concerned an opportunity to make his or her case, as in no other aspect of the law can that argument be made? In terms of what I said about the register, I understand the Minister has already resiled from that position and accepts that one cannot delegalise to that extent.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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Did Mr. Jim Dorney wish to add a further comment?

Mr. Jim Dorney:

At the bottom of page 19 of the document it is stated that if a written decision from the workplace relations commission hearing provides a basis for any appeal, a party who fails to attend or be represented at a workplace relations commission hearing without reasonable cause shall forfeit the right to appeal to the Labour Court. I understand the thinking behind that provision, as in a case where the person concerned does not bother to turn up. If a person has not been properly notified or takes ill on the morning of the appeal, the person would seem to have reasonable cause. However, if a person does not have reasonable cause and simply does not turn up and wants to appeal the case, I can understand the logic behind the provision I mentioned.

Mr. Noel Dowling:

I do not want to take up the time of the committee on this matter but currently the question of whether a person had reasonable cause for extending the timescale for submitting an appeal is often argued in front of the tribunal and that often becomes a subject of debate. A person may say that he or she went back to Poland, got sick and could not get back here and the person would be asked if a doctor certified his or her illness and reasonable argument on the matter is adduced but at least the person is given an opportunity to put his or her argument and the case is not dismissed by an individual putting the file in the out tray and disposing of it. A person is given the opportunity to make his or her case.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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The next speaker is Senator Quinn to be followed by Deputy Collins.

Mr. Peter O'Leary:

If I may, I would like to give an example of what could happen. A person whose form indicates the date he or she was summarily dismissed has six months to submit a claim. The date of dismissal under the law is the date on which the statutory notice, if it had been given, expired or if the person has an extended period under his or her contract when that notice would have expired. For example, if a person who has been summarily dismissed enters the date he or she was dismissed on the form and he or she does not submit the form within the six months timeframe but submits it six months and two weeks afterwards, and the person has been given statutory notice of a month, that can been added on to the six months timeframe but the person dealing with the form would not know that. That person would note the date of dismissal on the form as the date the applicant was summarily dismissed. Therefore, one would not know until one hears from the parties whether the statutory period should be applied. One would have to go through the hearing to establish whether it was justified that the somebody was summarily dismissed. A registrar or somebody else who is making a decision would not know by simply looking at a form whether the time period allowed for a case had expired.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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I presume an applicant could set that out on his or her form.

Mr. Peter O'Leary:

People tend to give the least possible information when filling in forms. It is an awful to say this but standard replies are given to the information sought in most of the forms we receive.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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I call Senator Quinn who will be followed by Deputy Collins.

Photo of Feargal QuinnFeargal Quinn (Independent)
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I thank the witnesses for their contributions. I have learned a good deal from their expertise and experience in this area and it has been an eye opener. When I first became a Member of the Seanad in 1993 the unfair dismissals legislation was going through the Houses, it having been circulated to the trade unions and others six months prior to that. I did not know quite what I would do in Parliament and I looked for what was in the customer interest in each item of legislation. The first issue that cropped up in the unfair dismissals legislation was an incident I had come across in a hotel where somebody had suggested that the hotel should sack the "auld one" behind the reception desk and appoint an attractive young one. The person was asked why the hotel should do that to which the person replied: "I like to see an attractive young one when I go into the hotel rather than an auld one. The manager said "No, she is very good". It dawned on me that it seemed very unfair that it was not illegal to dismiss somebody on the grounds of age. I submitted an amendment to the legislation that age would be one of the grounds for wrongful dismissal and the then Minister, Mary O'Rourke, accepted it. She had some difficulty accepting some other amendments but she accepted that one and it became law. A number of trade unionists said to me afterwards that they were amazed about that, that the draft legislation had been circulated to them months prior to that and that somebody from the employer side, as opposed to an employee, had come up with that proposal.
I mention that aspect in the context of the case of Hussein v. the Labour Court that was heard two months ago. That case involved a cousin of a person from Turkey or somewhere who had been granted a work permit for the first year but had continued to work for another six or seven years and found he was treated very unfairly. He went to the Labour Court to argue his case and was awarded €91,000 but the High Court overturned the ruling on the grounds that while he had a work permit for the first year he had not got a work permit for the other six or seven years. What happened there seems very wrong. That was based on the 2003 Act. Is there any legislation in the area of wrongful dismissal that the witnesses consider we should be examining? In terms of that case, I do not know whether there was a slip up in the legislation in 2003, whether we in the Oireachtas did not keep our eye on it or whether it was intentional for some reason or other. Is there any legislation in this area that the witnesses would like to see introduced?

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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I will also take questions from Deputy Collins.

Photo of Áine CollinsÁine Collins (Cork North West, Fine Gael)
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I thank the witnesses for coming in to talk to us. I have one question related to what Mr. Horan said. What percentage of the 6,046 decisions made last year were in favour of the employee and what percentage were in favour of the employer?

Mr. John Horan:

I do not know is the short answer to that question. From my experience, probably 60% of the decisions were in favour of the employee and 40% were in favour of the employer. When I sit on the tribunal I am not representing employers. We leave that aspect aside and we are just there to bring our experience to bear on matters. When I sit on the tribunal and look down at a person presenting his or her case and making a claim, I often think that if that person worked for me I would definitely sack him or her. Very often I have to find against the employer in those circumstances because the employer may not have followed proper procedures. That arises a good deal. I do not have the precise information the Deputy sought but I will try to get it and we will forward it to Deputy or to the committee whichever if preferable.

Photo of Áine CollinsÁine Collins (Cork North West, Fine Gael)
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Deputy Calleary made a comment about the SME sector and the legislation in place in terms of employers trying to employ people. The same legislation applies to large companies. I appreciate that we all want to be fair to employees but the legislation in this area can be cumbersome. Those in that sector do not have the facilities to manage the process properly. I know that is not the remit of the witnesses but I would just make that comment.

Mr. John Horan:

In response to that comment-----

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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Mr. Horan might respond to that point and to Senator Quinn's questions.

Mr. John Horan:

We would be very conscious of the idea of proportionality and what a large company with a human resources department might be expected to do and what a smaller employer, a one-man, two-man or family operation, might be expected to and we apply our common sense to that. If people are breaking the law we cannot ignore that but we allow for an element of variation between what would be expected of a very major employer and of someone with fewer resources.

To elaborate slightly, that is the benefit of having lay people on the tribunal. They bring the benefit of experience and therefore we can take into account, to some extent, the fact that a small employer may not be as sophisticated, may not have a human resources department and so on. We do that. On the other hand, it is a civil right, and a human right, and one cannot abrogate those rights simply because somebody is employed by a small employer. People either have rights or they do not have rights but within that we do take it on board.

On Senator Quinn's point, I am very conscious of that case because in my previous employment I dealt with that question a good deal. That question revolved around the issue of permits. If somebody did not have their work permit renewed by their employer - the law puts the onus on the employer - as happened in that man's case, through no fault of his own the employee is working outside the permit system. In that case the High Court held that his contract was not legal or valid. The contract could not be enforced because he was employed illegally through no fault of his own. That is an horrendous thing to happen and it was entirely foreseeable. In my previous job we had discussions with the Department of Enterprise, Trade and Employment and the Department of Justice and Equality to the effect that that was a case waiting to happen. The migrant rights association argued the point trenchantly that people here who fall outside the permit system become illegal and essentially have no rights. That poor man was treated very badly, and he still has not had his rights vindicated. There is an argument about changing the rules on permits to say that, notwithstanding that somebody should have a permit and so on, the basic protections in law should be afforded to that person. That should happen.

2:25 pm

Mr. Peter O'Leary:

In regard to that, that is an old case called Brooks and Shields where there was an illegality in the contract and therefore it was unenforceable. That is the law. There was an amendment in 1993 in the Act mentioned earlier that changed that in respect of defrauding the Department of Social Welfare or the Revenue Commissioners. Those reasons were removed from the legislation to ensure the contract would not be held illegal if that occurred but we were then obliged to notify the Revenue Commissioners or the Department of Social Welfare where we noticed an illegality in a contract of employment but nothing else was touched, so to speak. That is the reason that where there was an illegality in the particular contract the judge ruled it could not be enforced.

Mr. Jim Dorney:

I wanted to comment on Senator Quinn's intervention. Each of us sitting here has views about labour law and areas that could be better or worse in that regard. We would be here until midnight if we were to go into them but that is not the reason we are here. We are here to ensure that the mechanisms through which the law is implemented are reasonable and fair to both the employee and the employer.

Deputy Calleary said the Minister, Deputy Bruton, did a good job, and he has done a good job. He has brought in some welcome reforms but he is wrong in two significant areas, one of which is the private hearing. That is a step backwards, but the Deputy may not understand that we are only saying that in respect of unfair dismissal. It is different. It is the most important issue to any worker. Straightforward issues such as payment of wages could be dealt with by a single person but we are saying that unfair dismissal should not be dealt with by a single person because a single person does not have the expertise or the breadth of knowledge of the law and of industry.

Photo of Dara CallearyDara Calleary (Mayo, Fianna Fail)
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Mr. Dorney's objection to the single person is specifically in regard to unfair dismissal and not anything else.

Mr. Jim Dorney:

Yes it is. Some of the work, including the Payment of Wages Act, is straightforward. One examines the legislation and the situation, but unfair dismissal is a complex area and I do not believe it can or should be dealt with by one person.

The other area where the Minister has made a mistake is to suggest that the hearings would be in private. We can go into all sorts of technical detail about the European Convention on Human Rights and so on. Deputy McNamara of the Labour Party has done that in the public press but I put it to members that hearings should be in public for one simple reason, namely, it induces the parties to settle. Nobody wants to wash dirty linen in public and if someone comes to a public hearing he or she will do the utmost to settle whether an employer or a worker. To lose that on a pragmatic basis would be a mistake.

The Minister has left so perhaps I will leave my comments on another area that may be controversial. It was about the question of the reversal of the number of persons who went to rights commissioners and to the tribunal. It was the case until recently that 60% of the people went to the tribunal. The majority of them bypassed the rights commissioner, for whatever reason, but if the Minister is trying to coerce people to go to the rights commissioner is he not sending them to where they do not want to go, if members follow the argument? They might like to think that about.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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As the Minister is not here we will have to leave it.

Mr. Jim Dorney:

Can I clarify something to ensure nobody says we misled anybody? Deputy Calleary asked if we were mainly concerned about the unfair dismissal. We are, absolutely. That is the issue being discussed but to be technically correct, it is unfair dismissal and post-employment situations. As members are aware, sometimes in an unfair dismissal case the question of whether the person got paid proper notice and so on arises directly out of the dismissal but in some cases there can be disputes about issues like that without it being an unfair dismissal. If the tribunal decides that somebody has been fairly dismissed on grounds of gross misconduct and he or she is seeking statutory notice, the decision of the tribunal will be that he or she will not receive compensation because he or she was not unfairly dismissed. Such people will not receive their notice either because dismissal on the grounds of gross misconduct means that they do not get their notice. Approximately 99% are unfair dismissals. Sometimes bits and pieces, so to speak, arise from that but only in the context of a dismissal case.

Mr. John Horan:

I thank the Chairman for his forbearance but to add to what we have just been saying, there is an element of unfair dismissal cases that is to do with redundancy. Redundancy cases fall into two broad categories. There is the case where someone is genuinely made redundant but the payment made to them was calculated incorrectly and they make a claim under that heading. That is straightforward and can be dealt with administratively. However, there are other genuine redundancy cases but people are claiming they were unfairly selected for redundancy, that they should not have been made redundant and that it should be one of their colleagues or whatever and, in effect, these become unfair dismissals cases. We must draw a distinction between those two types of case. They are redundancy cases but one of them has a broad element of possible unfair dismissal and we believe that sort of case should be permitted to be brought forward and should come to this body. Over 90%-----

Mr. Noel Dowling:

It is unfair dismissal.

Mr. John Horan:

-----of our cases are unfair dismissal.

Photo of Mary WhiteMary White (Fianna Fail)
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I thank Mr. Dowling and his colleagues. It was most interesting to listen to them. I thank them for the contribution they have made to employees and employers in Ireland over the years but it is time to innovate, improve and simplify the system for all sides. We should have one body dealing with initial complaints instead of numerous bodies. I disagree with the important point of time schedules for acknowledging complaints, arranging a review of the complaints and issuing decisions.

I am of the view that it would be better to deal with matters in private. Everything is media-driven - in the wrong way - in this country at present. Those in the media appear to be running the show and focusing on titillation and embarrassing people. I am of the view that the real issue which will arise in the context of the Minister's reforms will relate to whether the necessary staff, procedures and technology will be put in place in order to allow the new timetables to be adhered to. The target is that a hearing will take place within three months of a complaint being made. Will a modern, properly supported organisation be put in place to deal with all the complaints that will be made?

I thank Mr. Dowling for his extremely interesting presentation. The Employment Appeals Tribunal has contributed so much to the country and I thank our guests for their great public service.

2:35 pm

Photo of Michael MullinsMichael Mullins (Fine Gael)
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I echo the sentiments expressed by Senator White. I worked in industry in the past and I was obliged to make a number of appearances before the tribunal, the rights commissioner and various other industrial relations organs of the State. I compliment our guests on a job well done and on the fairness that has always been displayed in respect of those on all sides in disputes. I am happy that on many occasions I was on the right side of decisions handed down by the tribunal. I have always been of the view that the best place to resolve industrial relations matters is in the workplace and that the last place one should find oneself is in front of the tribunal. I always tried very hard to ensure that I was not obliged to appear before the tribunal. If, however, I was obliged to do so, I usually had a good case and came out on the right side of the decision handed down.

Businesses that are struggling, both large and small, welcome the fact that the Minister is trying to promote harmony in the workplace and ensure that, where they arise, disputes will be resolved quickly and in a responsible, user-friendly way. There is general support for what he is trying to do in this regard. Our guests raised the issue of whether unfair dismissal cases should be adjudicated upon by one person or by more than one. That is a matter which we will probably debate further as the relevant legislation goes through the Oireachtas. I have a somewhat open mind on whether more than one person should adjudicate on these issues. I will reflect on that matter during our deliberations on the legislation.

In general, I am not in favour of public hearings. I am of the view that private hearings are more desirable. What Senator White stated is correct. The actual details relating to cases of this nature are of very little relevance to some elements within the media. The elements to which I refer tend to opt for sensationalism. Many people - including small employers and employees - would feel more comfortable giving evidence in a private, closed session rather than doing so at a hearing that would be open to the media. I support what the Minister is doing in this regard.

Photo of Deirdre CluneDeirdre Clune (Fine Gael)
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I thank our guests for their informative contributions. Earlier in the year we engaged in a discussion with the Minister in respect of the changes he is making. I agree that there appears to be a great deal of support for his streamlining the process, particularly as in future there will only be two bodies rather than five. On unfair dismissals, the committee will be engaging in further discussions on the legislation, which is currently being drafted, in the near future. In light of the contributions of our guests in respect of that matter, we will be able to debate the pros and cons in much greater detail.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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I call on Mr. Dowling to make his concluding remarks.

Mr. Noel Dowling:

Before I do so, Mr. O'Leary would like to reply to Senators White and Mullins in respect of public hearings.

Mr. Peter O'Leary:

The Constitution guarantees a right to a public hearing. There is a difference between industrial relations and employment rights. A right is something which someone must establish before a tribunal. Such a tribunal could be a court of law or an entity established under the Constitution. The Employment Appeals Tribunal is just such an entity. People have a right to a public hearing under Article 47 of the Charter of Fundamental Rights of the European Union and Article 34 of the Constitution. That is why I am of the view that hearings should take place in public. We are dealing here with people's rights as distinct from industrial relations matters. The Industrial Relations Act prohibits strikes in respect of the dismissal of a single individual. As a result, those involved in industrial relations disputes relating to such matters must exhaust the options available under the employment legislation before resorting to a strike.

Mr. John Horan:

It would be fair to say that it might be unconstitutional to do it otherwise.

Mr. Peter O'Leary:

Yes, I think that would be the case.

Mr. John Horan:

The matter is worthy of further consideration in the context of the forthcoming legislation.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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When the legislation is published in the new year, we will hopefully have an opportunity to examine it again.

Mr. Noel Dowling:

Not only might it be unconstitutional but it could also be ultra vires regarding the European legislation, which refers to the right to a public hearing. Although a party to an unfair dismissal claim can decide not to have the case heard by a rights commissioner - which would be in camera, that is, in private - and have it dealt with instead by the Employment Appeals Tribunal, the reality is that the vast majority of cases have gone directly to the tribunal. The reason for this is that employers have objected to hearings of the rights commissioner being held in camera. That is strange.
I thank Senator White for her kind remarks about our presentation. I know it was not her intention but it seemed that, as she concluded, the Senator was preparing to present us all with gold watches.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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The Senator is always very generous.

Mr. Noel Dowling:

We really appreciate the committee giving of its time to meet us. We have had a useful interchange of views. We hope that due consideration will be given to our views.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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On behalf of the committee, I thank our guests for coming before us. This has certainly been an informative exercise. In terms of the process, we discussed this matter with the Minister in July. The Bill has not yet been published and I am aware that certain aspects of it will be changed prior to publication. We will have a further opportunity to engage further with the Minister on this matter. We will examine the position further next week and identify the relevant points that need to be raised with him and his Department immediately. There are other matters with which we will be able to deal when the legislation emerges in the new year. We may even consult our guests further in the interim. The committee will certainly be involved in the process relating to the legislation.

Mr. Noel Dowling:

I wish to make a final point. When they have been presented with a document, people have a habit of returning to discuss matters further. In that context and in respect of the reference to a single adjudication by a body such as the tribunal sufficing and the assertion that appeals should only take place on points of law, we have acknowledged that contradictory legal views exist in this regard. We are quite willing to accept that it is possible that there may have to be an appeal and that this should be to the Circuit Court. This would still reduce the number of de novo hearings by one.

Photo of Damien EnglishDamien English (Meath West, Fine Gael)
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I thank Mr. Dowling.

The joint committee adjourned at 3.30 p.m. until 1.30 p.m. on Tuesday, 13 November 2012.