Richard Grogan on employment law: Wrong acts being claimed under
Employment law solicitor Richard Grogan of Richard Grogan & Associates writes on settlement agreements.
Case ADJ-3795 is another prime example of employees bringing claims under the wrong Act. The claim was brought under the Transfer of Undertaking Regulations S.I. 131 of 2003. The employee in her submission referred to Unfair Dismissal, a Redundancy issue, entitlements to Holiday Pay and other breaches of employment rights.
The Adjudication Officer properly held:
“For reasons that would be obvious, an Adjudicator can only decide on matters on the base of legislation under which the complaint is referred, and complainants would be well advised to ensure that they have selected the legislation most appropriate to their complaint at the time of submitting it. Complaints may arise, of course, under several statutes”.
This is most clearly simply stating the obvious but it is useful that the Adjudication Officer has done so.
The difficulty for lay litigants is that there is no comprehensive guide on how to complete the form. The form is a non-statutory form. Despite this the WRC seem intent on insisting on employees specifying a particular Act. There is no reason to do so. The legislation only requires the employees to submit a complaint in writing. The employee can simply write to the Director General with a letter that states:
“Dear Director General,
I was unfairly dismissed. If it was not a dismissal it was a redundancy. I did not receive my holiday pay. I was not paid my last week’s wages. I did not get minimum notice payment. I was subjected to sexual harassment in the workplace
That is all an employee needs to do. The Workplace Relations Commission then has to process the claim. There is no obligation anywhere in the legislation for the employee to use the WRC complaint form. There is only a requirement that it is in writing.
The WRC complaint form is not user friendly to those who are not legally qualified.
There is no help line which employees can go to, to get verifiable advice, which they can rely on as regards the completing of the said form. The WRC guides which are produced all have massive big disclaimers (admittedly in small writing and sometimes well hidden) which disclaim any responsibility for misleading anybody in relation to anything that is written down.
We now have the appalling vista constantly of cases being dismissed because claims are being brought under the wrong Act.
The WRC needs to get their act in order and put in place an easy to follow claim form which enables persons without the benefit of legal advice to complete the claim form.
A real problem as is clearly seen in relation to this case is that the complaint was delivered on the 27th May 2016. The case was not heard until the 23rd November 2016 being nearly 6 months later. If claims were processed a lot quicker it would have been very easyfor the employee to have amended her claim form.
The sad reality of matters is that more and more of these cases are being dismissed where people are not using legal representatives because of the claim form. This fact of life is not being highlighted by anybody. Clearly no responsibility is being taken by the WRC for the fact that their documentation is not user friendly.
Assuming that they might actually be reviewing their own decisions it should be patently obvious that there is something terribly wrong in the WRC where this is happening. It is a constant problem. We are constantly highlighting it. Absolutely nothing is being done in the WRC to address this important issue.
The whole basis of employment law was that it was supposed to be easy and cheap for employers and employees and that people would not need to use lawyers. Well, congratulations to the WRC. You are making it absolutely crystal clear that people are going to require representation if they are going to bring claims.
The Adjudication Officer in this case had no alternative but to do what the Adjudication Officer did. The criticism by this office is of the WRC. It is a criticism of a management of the WRC.
Perhaps the WRC management will replace the existing claim form with one that can be used by people who are not legally qualified.