Employment law solicitor Richard Grogan of Richard Grogan & Associates Solicitors writes on the inquisitorial nature of Labour Court proceedings.

While there is no written Decision on this, the chairman of the Labour Court recently, in a case in which I was involved, stated to the parties that the procedures before the Labour Court are inquisitorial.

Historically that has traditionally been the procedure before the Labour Court. In recent years there has been an attempt by some representatives, to a greater or lesser extent, to seek to have a more adversarial procedure apply.

For example, in cases under the Organisation of Working Time Act, it will not be unusual for the representative of the employer to require or seek to require the employee to give times, dates and places of when, for example, particular rest breaks were not obtained or in respect of the hours of work. Some representatives have sought to try to restrict the provisions of section 25 of the Organisation of Working Time Act, as a simple example, which places the burden of proof on the employer in the absence of records.

This probably flows from a misunderstanding of a Decision of the Labour Court in a case of Jakonis Antanas and Nolan Transport. That case set out that an employee must set out matter with sufficient particularity to enable an employer to know the case they have to meet. That can be simply, in the absence of records, for the employee saying that they did not always get their rest periods approximately twice a week or that they regularly worked 14 hours a day so did not get an 11 hour rest interval. Once that is done, then the burden of proof passes to the employer on our understanding of the legislation and the previous Decision of the Labour Court.

In cases under the National Minimum Wage Act, the legislation is different and all the employee needs to do is put in a claim, after which the entire burden is on the employer and the employee need do nothing.

An inquisitorial process before the Labour Court is far better for both employers and employees. It can cut through a considerable amount of time that might otherwise need to be used in a person giving evidence or being cross-examined. For example, if there are working time records, then, unless there is a challenge in relation to their veracity or that they are accurate records, the matter should be easily to be able to be dealt with very quickly without any evidence needing to be furnished. If the records do not show rest periods or they are outside the statutory period, then that should be the end of matters. Of course, there will be submissions relating to severity of the breach or an explanation as to why a breach may have occurred. However, that is part and parcel of an inquisitorial process.

The great advantage in the Labour Court is that when appearing before the Labour Court you know that they would have read everything that has been submitted.

The WRC Rules, however, are very much those of an adversarial system. The Supreme Court in May 2017 has ruled that the process in the WRC is an inquisitorial process. That will require a significant change of procedures in the WRC. It requires no change of procedure in the Labour Court. It will mean that Adjudicators in the WRC going forward will have to read the documentation in advance. The difficulty is currently that often the documentation is not put in in advance or sufficiently in advance. This is something that is going to have to change or, alternatively, the legislation will have to be changed to reflect that it is an adversarial system.

Change in the WRC procedures to an adversarial system would be a significant change and would effectively put self-representation by employees very much on the back-foot, as it would to employers, and therefore is not something which we would favour. Of course there are challenges for the WRC to bring in place an inquisitorial process, but the Supreme Court has spoken on this issue and the WRC has no alternative but to comply with the Supreme Court determination. If they do not, then in those circumstances the WRC can be open to Judicial Review applications on the basis that there have been no fair procedures. It will be interesting to see does the WRC follow what has been said by the Labour Court which is the appellant body of the WRC. It would be an anomaly if there was an adversarial system in the WRC and an inquisitorial process in the Labour Court.