What was Richard Bruton thinking of when he referred to setting up a “world class” service, to establishing a new entity that is “all about making Ireland the best small country to do business in”, when he launched a “new era for employment rights and industrial relations”? The answer, surprisingly, is the Workplace Relations Commission instigated last October with a cacophony of overblown rhetoric. With all the fuss, it comes as a surprise when this “world class” service says it can’t adjudicate on some of the equality cases within its remit.
It recently stated it did not have the resources to deal with cases of discrimination by landlords against tenants in receipt of rent allowance. Kieran Mulvey, its Director General, was quoted as suggesting “We are not the appropriate body for this, this is not a workplace issue”. This is troubling given the Workplace Relations Commission is in fact bound to adjudicate on cases in a broad range of fields beyond the workplace, under the Equal Status Act.
It is indicative, however, of a deeper malaise with the Workplace Relations Commission. Richard Bruton did add, with pride, that this new “world class” service was launched with 20% fewer staff and 10% less money than its predecessor organisations”. Who did he think he was fooling with his inflated verbiage?
The Workplace Relations Commission was established in October 2015 through the merger of five organisations: the Equality Tribunal, the National Employment Rights Agency, the Employment Appeals Tribunal, the Labour Relations Commission, and the Labour Court. The Equality Tribunal had been a key part of the equality infrastructure and sits uncomfortably in this new entity with a mandate that stretches beyond employment rights to discrimination in the provision of goods and services, education, and accommodation.
The Employment Law Association of Ireland (ELAI) is not impressed. They raised some fundamental issues in a February 2016 submission: about the adjudication of cases and the competency of the adjudication officers, the pre-hearing process and complaint submission, and mediation.
The ELAI note that the rules of procedure of the Workplace Relations Commission do not address how hearings are to be conducted. It identifies concerns among its members that “there is inconsistency in how Adjudication Officers apply basic rules of fair procedure; for example, the permissibility of cross-examination and the application of rules of evidence”. Cases are heard in private and there does not appear to be any monitoring of decisions by Adjudication Officers. The ELAI is concerned that the rules “do not guarantee users’ constitutionally protected right to a fair hearing”.
It is further concerned that the “framework for appointing and training Adjudication Officers is substandard”. There is no clarity as to the qualifications or expertise required of Adjudication Officers or what training they get. This is damning given the broad spread of cases they now have to deal with. The ELAI suggests there has been a “dilution of expertise” from the specialisation that had developed among staff in the predecessor bodies.
Richard Bruton made much of the importance of mediation in cases concerning employment rights. It would appear, however, that the mediation service is under-resourced and cannot meet demand.
It becomes ever clearer that this is not a service set up to be “world class” but to save money. The ELAI notes that some of its members recount instances “where both parties to a dispute have requested mediation but that request has been rejected by the WRC”.
The ELAI notes that while most complainants are not required to detail the substance of their complaint when it is being lodged, “exceptionally, complainants must provide substantive detail for allegations of discrimination and constructive dismissal.”. The guidance given by the Workplace Relations Commission for employees making a complaint of discrimination requires that “the complainant must set out the facts, the link between the ground(s) cited and the alleged discrimination, any other relevant information and, where appropriate, any legal points the complainant may wish to make”.
Under the procedures of the former Equality Tribunal such a statement was only required when submissions were requested some time after the complaint was lodged. The approach of the Workplace Relations Commission makes it more difficult for complainants to lodge a case of discrimination, increases the need for legal representation at an early stage with additional costs, and reduces access to justice.
This is only the first year of operation of the Workplace Relations Commission. There is still time to get it right. However, it is clear that urgent action is required to ensure people are able to vindicate their rights. As paid work becomes ever more precarious and as discrimination persists at high levels, the weakening of our rights infrastructure in this way must must not be accepted.