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.