Richard Grogan on employment law: Excessive length of proceedings before the WRC



Richard Grogan
Richard Grogan

Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on the excessive length of proceedings before the Workplace Relations Commission.

Due to a recent Judgment in Case T-577/14, being a case of Gascogne Sak Deutschland and Gascogne v. European Union, the EU was ordered to pay more than €50,000 in damages to the companies as a result of the excessive length of the proceedings before the Court.

The case concerned issues concerning compensation.

The ECJ stated that the EU may incur non-contractual liability where three cumulative conditions are fulfilled. Namely:

  1. The institutions’ conduct must be unlawful;
  2. Actual damage must have been suffered;
  3. There must be a causal link between the conduct and the damage pleaded.

The ECJ concluded that as regards the first condition, namely the unlawfulness of the conduct of the Court of Justice as an EU institution, the Court considered that the right to adjudication within a reasonable period enshrined in the Charter of Fundamental Rights of the European Union being the second paragraph of Article 47 of the Charter was breached as a result of the excessive length of the proceedings. These proceedings lasted more than five years.

In particular, the Court noted that in the field of competition law (a field which is characterised by a greater degree of complexity than any other type of cases), it appeared 15 months between the end of the written part of the procedure and the opening of the oral part of the procedure generally constituted an appropriate period. In this case 46 months separated the two parts.

The Court considered that the parallel treatment of related cases may justify an increase in the length of the proceedings by a period of one month per additional related case. These issues were set out in the press release no1/17.

The ECJ have held that the field of competition law is one that has “a greater degree of complexity” than any other type of cases. Therefore for cases before the European Court of Justice as regards the written part of the procedure and the opening of the oral part, 15 months would be acceptable.

Where you have cases relating to such matters as the Organisation of Working Time Act, an Equality Claim, Equal Status Claim or a claim under the Terms of Employment (Information) Act or any other legislation which derives from European law, then it would appear, following the decision of the ECJ, that parties may well be able to rely on the 2nd paragraph of Article 47 of the Charter to require cases to be heard within a reasonable period of time. Clearly as 15 months would be regarded as reasonable for the field of competition law which has a greater degree of complexity than any other type of cases, then clearly a shorter period would apply in relation to employment cases.

As regards to the second condition which is actual damage suffered, the Court held that one party did not suffer actual damage.

As regards to the issue of non-material damage however the Court held that the failure to adjudicate within a reasonable period in those cases placed the two companies in a situation of uncertainty which went beyond the degree of uncertainty usually caused by litigation and they held that the state of prolonged uncertainty necessarily had an influence of the planning of decisions to be taken in the management of those companies and an award of €5,000 was provided for each company.

Where employees bring claims because of the fact that additional costs may arise in having to send reminders and otherwise to the WRC to have cases come on may well be that employees will actually be able to show actual damage.

At the present time there is a delay in having matters dealt with by the WRC.

There are a number of reasons for this. Namely:

  1. While 21 additional Adjudicators were appointed some Adjudicators have not heard any cases. Some Adjudicators are simply being assigned cases for a couple of days every week. They are not full time. This means that there is not effectively an additional 21 Adjudicators.
  2. The WRC has taken over all new cases that would have gone to the EAT and to the Equality Tribunal. Clearly they are under-resourced.
  3. Adjudicators do not have , for example, as Kerr’s Employment Legislation. They do have the on line version of it but this often lags behind the hard copy version. This is a practical problem.
  4. There is a shortage of staff. This is compounded by the fact that part of the staff are in Carlow and part of the staff are in Dublin.
  5. Not only is there delay in getting cases on for hearing there is also a delay in getting decisions issued.

This office was at the start a supporter of the new WRC. This was on the basis of the undertakings given by the then Minister Richard Bruton that we were going to get a world class service. The reality of matters is that it is now quicker to get a case on before the District Court for a breach of contract for non-payment of wages than it would be to get a claim before the WRC under the Payment of Wages Act.

Where cases are adjourned which is occurring on the WRC because for example an additional submission is required or documentation has only been produced by one side on the day and the other side require an adjournment which is not unfair. It can take months to get the case relisted.

Where letters are sent in requesting updates there is a standard reply letter, which can take weeks to issue, if at all.

It is not uncommon for this office to have to send a number of reminders to try and get a hearing date.

The issue of delays in the WRC has become a significant problem. The recent Decision of the European Court may well give a basis for bringing a claim against the State for failing to vindicate rights quickly in the WRC.

The solution is very simple. Significant increased resources are needed for the WRC to work effectively and efficiently and for cases to come on quickly. It will be interesting to see does anybody bring a claim against the WRC and what the outcome of it might be.

  • Richard Grogan is the principal solicitor at Richard Grogan & Associates Solicitors. You can subscribe to the firm’s monthly newsletter at grogansolicitors.ie.