What is the procedure in an employment case and how can we help?
When bringing an employment claim to the Workplace Relations Commission (the WRC) these are the important steps that you should always take and where we can help;
- We can Write to your former employer outlining your case and seeking their response.
- DSAR: In this letter we would also usually carry out an “access request” for any information your (former) employer holds about you, this is known as a Data Subject Access Request or “DSAR” for short and it is very powerful. Always, always, always do one. This means that your employer should provide you with your personnel file as well as any information that they hold which identifies you including emails, letters, SMS texts or memos. This is a very useful exercise to discover what information they have about you and also to draw a line in the sand as to what they might rely on at hearing;
- Make Notes: At the same time you should be making a very thorough comprehensive record or statement of your position with as much supporting documentation as possible. This is the when, where and how of what happened to you and will be critical later. Hearings can take up to nine months to schedule and you can add 18 months if you go to the Labour Court. You need to be sure that your recollection is recorded as memories dim over time. If you have what we call contemporaneous notes of what happened or notes you made at the time as these things were happening to you then all the better. These will be important evidence of what happened to you.
- Lodge your Claim: Assuming that your Employer does not try at this stage to resolve the matter (which they very rarely do) you should lodge your claim or claims to the Workplace Relations Commission (the WRC). Remember you only have six months from the date of the unlawful act you are complaining about so act quickly. You should also be careful to properly identify your employer in the legal identity as otherwise they could wriggle out “on a technicality”;
- Review the DSAR: Having received a Response from your former employer to your DSAR, you should review this information carefully. It is generally at this stage that we finalise which claims we will be taking on a Client’s behalf as often things can turn up in the reply that are unexpected. Sometimes it can take a little bit of time and encouragement to convince an employer to respond to the DSAR, but don’t worry, if they ignore you the Data Protection Commissioner can be pretty persuasive!
- Draft Legal Submissions: Having reviewed the DSAR and combined that with your own data you can see if there’s anything missing and if there is you should raise this with the employer. Once you are satisfied you have everything you need, you should begin preparing your legal submissions to the WRC which you will rely on at any hearing of our case. We usually do this in consultation with one of our team of barristers who assist us in representing our Clients at their hearings. For an Unfair Dismissal case it is generally for the former employer to make submissions first, however we usually start this process in the absence of any submissions from them just to keep us one step ahead and you should do this too. In an Equality claim it is for you to set out your case to your employer and the WRC, outlining what happened, how that was in breach of your rights and what the law (in particular caselaw) says about that type of conduct. It is for you to you’re your submissions first and we generally spend a lot of time drafting these for Clients. Time is of the essence here and it is important that you put some effort into these and make sure that everything is factually accurate and correct. We also talk about the battle of the briefs and it is important that your submissions are well presented and well organised both for your opposite number as well as for the WRC. Perception here is important and you don’t want to be perceived to be disorganised or unprofessional.
- Submit these: These should be submitted to the WRC and copied to the other side within about 28 days of lodging your claim.
- Get the other sides’: Once you have lodged your submissions you should look to the other side for theirs once they’ve been given a reasonable period of time to digest yours. Then it is simply a matter of waiting for your case to be listed. It is important that throughout this time, if your case relates to an Unfair Dismissal, that you keep looking for work and that you can show evidence of the efforts you have made to find alternative employment. The importance of this cannot be overstated. The law basically requires you to spend every waking hour looking for work and a failure to evidence this could lead to a significant reduction in any compensation awarded to you if you were to be successful.
- Prepare for the Hearing: Once you receive confirmation of the date of your hearing you should start preparing for that. This is where the rubber meets the road and one of things you should do is prepare a calculation of your loss if that is relevant. You should also contact any witnesses you intend to bring in support of your case and make sure that you know what they will say! You should prepare five copies of your submissions and in particular any documents upon which you intend to rely or refer to at hearing. These should be divided into sections and should be page numbered on the bottom right hand corner of the page. The Sections should be as follows;
- Written Legal Submissions;
- WRC Complaint form;
- Claimant’s contract of Employment (if any) and any Employment Handbook (if any);
- Payslip; P45 and P60 (if any);
- Inter-partes Employment correspondence;
- Caselaw and legislation;
- Any other relevant documents.
- On the day of the hearing many employers will turn up armed to the teeth with lawyers and witnesses. We attended one case in Galway against a State Agency and they turned up with three lawyers and eleven witnesses. They couldn’t even fit in the room. These are all tactics to intimidate. In another case, against a well known budget airline, the employer came with two solicitors, a commercial senior counsel and a stenographer. Another client who represented herself in the WRC had the top employment law barrister in the country against her. Understandably she lost!
- The Evidence and submissions: At the hearing, you present your case in oral and written submissions. You can call witnesses in support of your claim and you can give your own witness evidence about what happened to you. You and your witnesses can be cross-examined by the other side in order to probe whether your story stacks up…are you and they telling the truth or have you maybe simply misunderstood the situation. Lawyers can be very skilled at this and you should take great care not to rush into any answers. We find that sometimes when people are nervous they will simply say anything or agree to any proposition to just get out of there. Don’t do that. This is your best opportunity to tell them exactly how the way they treated you was unfair and how that effected you…don’t come out with any regrets. Likewise, the other side will also give oral evidence to the Adjudicator and you can then test that evidence through questioning (cross-examination). It is crucial that you are well prepared for this stage. You should know what it is you are trying to provde and what questions you need to ask to establish that. Never, never, never ask a question that you don’t already know the answer to. The purpose of the cross-examination is to lead the witness to the answers you want them to give to the Chair. When you are asking those questions, you are not doing so to try and figure out what happened, you are asking them because you want to show the Adjudicator, exactly what happened and you want to do that through their words not yours! Finally when all the evidence has been elicited, you and the other side are bth given an opporunity to make a closing submission or sum up your case. Again this is important as it will stitch together your case and the evidence that has been heard in order to present your case in the best possible light to the Adjudicator.
- Housekeeping: Prior to the commencement of the hearing some housekeeping issues can also be agreed. For example you should agree what your earnings were, your date of commencement of employment and the date of leaving as well as your Loss. Booklets of documents should also be exchanged. No less than 15 minutes before the scheduled start time, you should go to the hearing room and make yourself known to the other side and the Adjudicator and / secretariat. It is crucially important from this point on that you espouse a professional and tough but friendly manner.
- Settlements: Often in advance of the hearing or at the hearing itself some discussion takes place with the employer or their representative with a view to settling. Generally, when this occurs the employer seeks to compromise the case by the payment of a settlement figure. It is for you to decide whether any offer is sufficient to resolve matters as you are the only person who can agree the settlement and withdraw your case. Where some settlement is agreed it will always be on the basis that it is confidential, without admission of liability and in full and final settlement of all of your claims against your employer. If the case is not settled prior to the hearing, it is still open to the Adjudicator to attempt to mediate a settlement which they may or may not do depending on the evidence they hear at the initial stage of the hearing. If the case is not settled, the Adjudicator will not make a decision on the day but usually you get a reasonably good feel for how the Adjudicator views your case. The Adjudicator will write up a decision and send this out by post. While they say this will take 8 – 12 weeks from the date of the hearing, it usually takes a lot longer than that. We have waited over nine months for decisions on occasions. This is important because many employers come to these cases armed to the teeth with lawyers and witnesses. We attended one case in Galway against a State Agency and they turned up with three lawyers and eleven witnesses. Part of this tactic is to intimidate
- The Decision: On receipt of the Adjudicator’s determination either side has six weeks from the date the determination was made to appeal it to the Labour Court. Obviously if you lose you can appeal that decision and likewise if your employer lost they can appeal. You can also appeal where you win but you think that the award made was too low this is called appealing “on the quantum” of the case.
- Appeals: Of course if you are successful in your claim the Respondent may decide not to appeal where the award is low. If you are unsuccessful you should consider the viability of making an appeal but don’t lose heart, many cases which have been lost at the WRC stage can be resurrected at the Labour Court. It is important to note that on appeal the decision is no longer anonymised and the hearing is open so the employer is no longer protected by confidentiality and this means that their conduct towards you can be reported. This can understandably create great risk for the employer as it leads to a possible exposure to negative publicity. The Labour Court is also a much more formal process and evidence is given at Labour Court hearings under oath and witnesses are subjected to direct and cross-examination. This can also make the battleground a bit more level.
- Costs: Regardless of the outcome of your case both in the WRC and the Labour Court, the costs are borne by the parties and cannot be attributed to the other side. So if you win, they do not have to pay your costs but likewise, if you lose, you are not on the hook for theirs.
We are a specialist employment law practice. That means that every single day we’re dealing with our Client’s Data Protection and Privacy rights and ensuring that employers are respecting these. We are perfectly placed to not only offer you advice on data privacy and protection concerns but to guide you through its complexities too. We’ve already built up years of experience working with individuals data protection rights, ensuring we’ve gained a comprehensive view of how to offer you the best level of guidance and support.
What we Do
Our dedicated team of professionals has huge experience working on behalf of and with workers in these types of situation. We have the legal knowledge required to guide you through this complex situation and give you the advice and support you need right now. We are experienced at resolving these types of claims quickly and effectively – often without you even having to face a drawn-out battle in Court. Our aim is to work for you to achieve the best possible outcome so that you can move on with your life. We will;
- Listen to You!
- Advise you on your legal rights;
- Take all the necessary legal steps required to make your voice heard and;
- Get you compensation.
With You, Every Step of the Way
Most of all, we will be with you, every step of the way and when push comes to shove, we will be your voice.
Barrack Obama once said “one voice can change a room, and if it can change a room, it can change a city and if it can change a city it can change a nation and if it can change a nation it can change the world”.
Make your voice heard and help to change something…
Our service is confidential, discrete and tailored to each Client to fit their individual needs. We will never disclose your information to others.
What do I need to Do Next?
Every month, we offer a select number of potential clients an opportunity to meet with one of our team for a free, no obligation, initial consultation to discuss the options available to you.
At that meeting we will LISTEN and go through with you every aspect of your case and can give you clear advice about your options, what legal steps you can take to make this stop and we will also explain the whole process and the strengths and weaknesses of your case. If you wish to proceed we will file your claim, draft written submissions and represent you at any Court hearing. Due to high demand and because we only work with a limited number of cases, we only offer 20 appointments a month. We know that these appointments always fill up very quickly. Contact us today to see how we can help you chose the outcome you want. Please also remember that you only have two years from the date of your accident or injury to make your claim so don’t delay, the clock is ticking. After that time limit passes, your claim is what’s called “statute barred” which means that you can’t make a claim at all after that.
Make An Enquiry
Call us today on 1890 88 90 90 or email email@example.com to find out more about how we can help or click here to make a Free Online Enquiry and we will soon be in touch to help you.