Wednesday 17 January 2018

Jobs quangos need massive reforms

Agencies responsible for probing employment disputes need to be more transparent, writes Eugenie Houston

March 14 last was a typical Monday in the High Court. Over four-and-a-half hours, one judge dealt with motions in 72 cases. Six of these had a combined value of €3.8m. The rest combined were worth a minimum of €2.5m. Almost €6.5m in total.

Two other judges in separate courts dealt with similar lists. Not every case reached a final conclusion, but many did. The point is that all cases progressed. Just like every Monday.

A similar scene takes place almost daily before county registrars around the country. They each can easily progress cases worth collectively close to €1m in a day.

What explains all this efficiency? Rules for one thing. Rules of evidence and procedure. Motions before the courts are heard on affidavit, which is written evidence on oath. This means that the facts are presented in advance and witnesses are not always required to give live evidence. Lawyers are expected to know the relevant law and to steer the court on the law where required. And there is little delay. Just as well, as delay is frowned upon by courts.

Compare this to the statutory bodies responsible for investigating employment law disputes. These hold serious responsibility. The rights to work and to earn a livelihood flow from the Constitution and there is a plethora of legislation conferring employment rights and obligations. These bodies do important work.

Rights Commissioners hear disputes under no fewer than 22 pieces of legislation and statutory instructions. They are not required to hold legal qualifications, although many come with human resources or industrial relations experience. Unlike the courts, they are not obliged to follow any evidential or procedural rules. They work alone and set their own rules on an individual basis. Surely this is a loose arrangement given the importance of the rights they investigate?

The Employment Appeals Tribunal (EAT) is a little different. It is a quasi-judicial body. It sits with three members, including one lawyer, and a secretary. That's a lot of resources. It, too, sets its own rules. Witnesses give sworn evidence and yet the hearings are somewhat informal. This is a contradiction that is difficult to reconcile. Taking an oath is a solemn, formal process. If sworn evidence is given, is it right that anything other than the rules of evidence and procedure that prevail in a court would apply?

What happens if hearsay evidence is given? Is it taken into account in the decision? That is often anybody's guess as, with exceptions of course, the reasons for EAT decisions tend to be either short or absent.

Then there are the endless delays. Wait a year for a hearing date. Wait for months for a decision. Why not make a decision on the day? The EAT is quasi-judicial. Let it act like a judge.

Actually, in some ways, the EAT is treated like the judiciary. It is immune from costs where its decisions are successfully challenged by judicial review.

The fees paid to Rights Commissioners and members of the EAT are not too bad, not excessive but worth collecting and there appears to be no requirement to give up your main occupation. So how do you go about securing one of these roles? No idea. A transparent, open competition would be welcome. What better way to measure expertise?

There is serious backlog of claims at present. This could be easily and immediately fixed by requiring all complaints to be detailed by affidavit. Multiple complaints made in relation to the same matter could be consolidated. This would cost about €20 per affidavit and would save a vast amount of hearing time. Affidavits could be read in advance and net issues dealt with at a hearing, following which a timely decision should be given. A secretarial service will return dictated documents within hours for less than €1 per minute of dictation. There is no excuse for undue delay and certainly not one lasting for months.

In the medium-term, the system for resolving employment disputes must change. It has become adversarial but without the protective rules of court.

If it were my call, I would disband the Rights Commissioner Service and the EAT in their current formats and divert those resources into an enhanced and compulsory mediation service at the Labour Relations Commission. This is something at which the LRC excels. Where a dispute can only be resolved by recourse to law, then it should be a matter for the courts. County registrars could be given the powers to decide employment matters.

Like it or not, employment rights and obligations are legal rights and obligations. To treat them as anything less than that runs the risk of making them quasi-rights and obligations.

Eugenie Houston is a practising barrister and author of 'Transfers of Undertakings in Ireland: Employment Rights' published by Bloomsbury Professional

Sunday Indo Business

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