Thomas Pringle (Donegal, Independent) | Oireachtas source

I am glad to have the opportunity to contribute to the debate on this Bill. Regarding the comments on balance in terms of tribunals, it has been my experience that the balance is very much in favour of employers when one looks at the amount of suits they have going into hearings, while workers very often cannot afford that. It is a very unbalanced situation and we need to do everything we can to balance that up.

It is interesting that this Bill comes from a Supreme Court judgment. Overall, I believe that it is a useful judgment that protects the rights of individuals. Although it may be bizarre for me to say this, I believe it is I believe going to protect and help employers as well. I will talk more about that later.

This Bill arises from a case that was taken in the Supreme Court by a person who felt that he was mistreated by the Workplace Relations Commission. When one reads the facts of the case and how it arrived in the court, there is no doubt but that he was mistreated. This also needs to be rectified. It is not legislation that will rectify this rather it will be fair procedures in the commission to make sure that does not happen again. I hope that will take place as well because it was a bad mistake. It has given rise, however, to a useful judgment that will correct that as well.

In its judgment, the court found, and rightly so, that the commission's business had to be conducted in public like all administration of justice in the State. It should be a basic principle that all proceedings should be in public. Justice should be seen to be done. Article 6 of the European Convention on Human Rights, which states that in the determination of his or her civil rights and obligations, everyone is entitled to a fair and public hearing, is telling and should guide all that the State does.

It may cause some people difficulty, in that they are held in public but on balance, it is right that they should be in public.

In reality, most cases will not attract attention anyway, and the novelty of a public hearing will soon wear off. I think there is another reason that hearings should be held in public, which is that it will force employers to participate in proceedings. I have heard anecdotally, I admit that it therefore may not be strictly true, that employers view the tribunal as having an employee bias. Therefore, they decide not bother to turn up and choose to take the hit of a negative outcome. I have heard that on a number of different occasions. It undermines the role of the tribunal itself, as well as affecting employers. It allows those making spurious claims to get away with it because employers just decide to take the hit and get on with it. It also prevents employers being scrutinised. If they do not participate, the tribunal cannot look into how they are behaving and force them to change their procedures and behaviour. Perhaps that is why they choose not to participate.

That kind of rationale is highly negative and undermines the whole system. I believe, from my experience, that if employers have dealt with a person fairly and they are represented at the hearing, they will get a fair hearing. In reality, it is because employers did not follow their own rules and procedures that they have a case adjudicated against them. Therefore, employers should be exposed to the public if they do not follow their own procedures or do not follow fair procedure and workers should benefit from that.

I have been at what used to be known as the Employment Appeals Tribunal a few times, mostly representing workers and getting their entitlements for them, and once as an employer. Therefore, I have seen it from both sides. I believe that the giving of evidence under oath is necessary and should be required. That requirement was removed for the Workplace Relations Commission by the 2015 Act. I am not sure why it happened; perhaps it was an oversight. If it was an oversight, I am glad to see that it has been reintroduced. Perhaps it was not an oversight and there was a rationale behind it. I do not know what that rationale could have been but it did not help employees.

In general, the tribunal is the only time that most employees attend a court or find themselves in a court-type situation. The requirement to give evidence under oath would underline that fact. Employers would find it more difficult to give evidence under oath, particularly when they are mostly in breach of the rules of procedure and fair play and are trying to defend that.

The additional power included in the Bill to remove the power of removal of inspectors from the Department is also welcome. It is not to say that it has happened but the appearance of independence is very important. The possibility of an inspector thinking about his or her position in making a decision is real if the power is left as is.

Sadly, employees should not generally have to take a case to the commission. Nevertheless, the commission needs to be part of the system. It may be unrealistic but I hope that in the future, it might not need to be used if employers deal with their employees properly.

There is another issue that needs to be addressed. Perhaps it is being addressed now. I am aware of instances where the employee won their case at the WRC and the employer appealed it to the courts. Subsequently, the employee was unable to get representation and the employer won the case by default. That is wrong. There must be a balancing of resources. If an employer has the resources goes to court, the chances are that they will win by default. I am not sure how employees can be protected against that. Perhaps the introduction of a blanket entitlement to representation at the point at which a case gets to court would be useful. I take on board the points made by Members earlier about how employees need representation at tribunals. I think the unions do a very good job. That is the type of representation that employees need at that point. However, when an employer decides to lodge an appeal with the court, there must be a balancing of the situation. Employees need access to legal representation in that situation. I know that if the employee is represented by a union that the union might provide that legal representation. When I have represented workers at tribunals, they have been in non-unionised employment. In some cases unions will not represent these workers. The vast majority of workers in Ireland are in non-unionised employment. That is a problem that will be dealt with another day. It is important that employees have access to that representation. I have engaged with employers and employees. When an employee's case goes to court, they do not know what to do. They are left behind and they lose their case. That needs to be dealt with.

Overall, the Bill will make things better all around for employees and that is to be welcomed. If employers embraced the procedures and treated their workers fairly in the first place, they would not end up at a tribunal. In cases where they do end up at a tribunal, the suggestion that they do not turn up, having decided to take the hit, is wrong. Employers must address that. If they do attend the tribunal, they will find that it is very fair and gives a fair hearing to all parties. When a party loses a case, it is because they deserve to do so.

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