Here are just some of the questions we hear a lot from people, just like you, who are considering taking a case.
Unlike many other forums for legal redress the WRC does not have the power to award costs. Therefore each party must bear their own costs. It therefore is advisable to always consider the potential exposure to costs at this stage and the fact that whatever the outcome of the case, although the applicant will not be liable for the employer’s legal costs before the WRC.
Of course this also means that even if an applicant is successful he must bear his own costs. It is often easier to quantify the cost exposure before the WRC than in other legal forums which may be helpful for an employee in considering his options.
If you would like to learn more about how we charge our fees, click here.
There is no legal entitlement to a reference from your current or previous employer. Often a reference is an important issue which must be considered before seeking legal redress. The employee will have to decide on how important a reference may be given the nature of the industry in which he works. There is no obligation on the company to supply a reference and typically, when legal proceedings have issued, references are often reduced to mere factual statements of the dates of service and the roles and responsibilities carried out.
If a matter is to be ultimately settled a more fulsome reference may be negotiated. It is helpful for a reference to state that his position terminated by reason of redundancy and therefore avoid suspicion of misconduct or incompetence. If the matter goes to hearing the opportunity to acquire a meaningful reference is generally lost.
Compensation is the most common remedy awarded by the WRC. If successful in an unfair dismissal action an employee may be awarded a maximum of up to two years’ salary. However, such a high award has only been made on a handful of occasions and should not be expected. In fact, the manner in which an award is calculated is almost designed to mitigate against such high awards in that a successful claimant can only be compensated for the period in which they were at a loss and as such as soon as they gain further employment their loss stops and that is the height of what they can be awarded. A realistic result, if the employer cannot prove that the dismissal was fair, is a sum in the region of 50%-75% of the employee’s lost earnings. The average award of the WRC currently is around €11,000.
Because an award is only made for actual loss from the date of dismissal to the hearing of the action and for any projected loss into the future a claimant should ensure that they keep a good record of their efforts to find work. You see if you were to take up another job or to set up business on your own account, the actual achievable loss would be the loss of salary up to the start of your new job and the differential, if any, of the rate of pay between your old job and the new job. There is also an obligation on any claimant to mitigate their loss and it is useful for an applicant to be able to demonstrate the manner in which they attempted to do so. As already noted these efforts should be recorded and documented by keeping the details of all applications made etc. Traditionally the WRC’s awards are lower in relation to claimants who are younger and have a longer working career ahead of them than older claimants. Regard may also be given to the length of time an applicant has worked with a company.
Employment cases are generally dealt with outside of the Court system at the Workplace Relations Commission (WRC), so it is very unlikely that you’ll ever have to go to a “Court”. You may however have to attend a hearing in the WRC at some point. If your former employer accepts that they’ve done something wrong or if they have an aversion themselves to fighting you, they may well agree to pay you compensation. In those circumstances, no hearing will be necessary. We find that about 60% of our cases never make it to a formal hearing. The other possibility is that they might deny any liability or wrongdoing and call upon you to prove your claim fully.
Many employers will string an employee along initially, to see how serious they are, in the hope that they may drop the case. But when they see that this is not going to happen, they may well think twice and decide to try and resolve the dispute. It is impossible to say at the outset of an employment claim which route an employer (or an employee) will take. At the end of the day, many of our Clients will say that it is not about the money, they want their employer to understand that they cannot treat people in this way.
To apply to the Workplace Relations Commission for redress you simply complete and submit the workplace relations complaint form online at the WRC’s website www.workplacerelations.ie.
It is crucial that when completing this form, you correctly identify your employer. Many employers operate under a trading name but have been constituted in the form of a limited company. You must ensure that you correctly name that limited company on the form, as this is the legal entity that owes you a legal obligation. You can check the employer’s legal identity here www.vision-net.ie.
Once the claim is lodged, you will need to draft written submissions outlining what you allege your employer did wrong and highlighting the parts of employment law that you say they contravened. We usually instruct a barrister to assist with this and to draft the appropriate legal submissions.
Once these submissions have been filed and served on the other side, they are given an opportunity to file a reply. In this they will no doubt deny what it is you are alleging and maybe set out what in their opinion occurred. Assuming liability is denied it is up to an adjudicator to decide on the issue.
This is done at the formal hearing of the case and each side is given an opportunity to introduce evidence both oral and written, to cross-examine witnesses and to make additional oral submissions on the matter. It is usually the cross-examination that people fear most! Often that is why it is useful to have someone who is familiar with the set-up alongside you or at least someone there to support you. But rest assured it is not quite as bad as you would think. People are generally quite polite, and the Adjudicators are very well seasoned and take much care to ensure that witnesses are protected from inappropriate badgering or haranguing by either side. We do find however that employers are invariably represented by solicitors and often legal counsel (barristers) as well.
In short No. The WRC and the Labour Court are not entitled to award costs against you if you are unsuccessful in your claim. Similarly though they cannot award you costs if you are successful so the legal costs of your claim must come out of your award.
So, if you have been the subjected of unfair treatment or a unilateral change to your contract of employment just give us a call to discuss your options.
To make sure you get the best possible outcome we need as much information and documentation from you as possible to ensure that we can present the strongest possible case on your behalf. This should include where possible;
Even if you are using another firm or proceeding on your own behalf, you should gather as much of this information as possible. When we take on a case for a claimant we will also always write to their employer to carry out a data protection request or what we call a “DSAR”. The DSAR compels the employer to hand over everything they have identifying the claimant. The beauty of this is it draws a line in the sand and we know exactly what it is they have and might seek to rely on. We will then go about drafting up the written legal submission outlining for the WRC on your behalf the case that you are making. It is also often helpful to identify any witnesses who might assist in supporting you at a hearing. Of course its difficult to ask someone who still works with the employer but many of our Clients will have stayed in touch with other former employees who are usually only too happy to help. This is usually very useful in convincing an adjudicator of the merits and truthfulness of what you claim.
That doesn’t matter. The law assumes that there is a basic contract in place and that many of the fundamental employment rights and protections are deemed to protect you even if there’s no written contract in place. Therefore even without a contract you still have rights as an employee and you may be entitled to compensation if those rights have been violated by your employer. Employment law in Ireland is comprehensive and provides a good level of protection for employees. Your employment relationship is essentially based on an implied contract of employment and there are certain rights, both express and implied, in that contract as well as employee rights that are guaranteed to every employee by legislation. These rights still apply to you even if you don’t have a signed contract of employment.
We will provide you with a preliminary assessment of your case and agree how you wish to proceed with you before engaging with anyone. We also advise clients to make a note in as much detail as possible of what happened to them. It may take six to nine months for your case to be heard and it is always useful for you to have a note of what happened to remind you of anything that you might have forgotten because of the passage of time. The better a record you keep of what happened to you, the better able you will be to demonstrate to us and the WRC the full extent of your claim. Of course, you should never exaggerate what happened to you but, by the same token, you should not lose out on what you are entitled to because you forget how awful things were as time goes by. One of the most important things you can do is to write things down as you go along so that you can refer back to your notes whenever you are asked about it.
Well, how long is a piece of string??!! This is very difficult, if not impossible, to answer at the early stages of your case and you really should be getting worried if someone tells you otherwise.
Awards in these cases are based on a number of factors, principally, how much you were earning in your job. The WRC can award up to twice your annual salary for a breach of the law but it is extremely rare for that sum to ever be awarded.
In an Unfair Dismissal’s case, the amount of compensation you are awarded will depend on the length of time it took you to find alternative employment after your dismissal and if this alternative employment was of equal or less remuneration to your former job. Again, the law allows an award up to a maximum of two year’s “loss of earnings”.
Because this is loss of earnings, it is also important to know that you can be taxed on the award. The Revenue treats this simply as income and taxes it as such.
In Discrimination claims, it is different. The law looks on the award as “compensation” for the manner in which you were treated and as such, it is not taxed or taxable.
There is also a number of tax strategies that can be applied depending on the type of case you are taking, and it is important that you are aware of these in each situation.
So what else does an adjudicator look at? Well, for a start, they will ask themselves the question, “who is to blame for this?”. For example, while an employer might have acted badly, the Claimant themselves may also have contributed to their own demise! This is called “Contributory Negligence” and is a situation where the employee has contributed in some way to their dismissal or ill treatment. The effect of contributory negligence is that it can reduce the value of a claim sometimes quite dramatically. The classic example of contributory negligence is where a dismissed employee was guilty of serious misconduct. In this instance, the WRC may make an award for damages for the Employer’s failure to follow a fair procedure but might then subtract an amount, or percentage, to represent the part which the WRC thinks the employee contributed to or played in their own downfall.
Some people come into us thinking that the WRC are going make them a massive award and that they need only sit back and wait for the bags of money to arrive! And it is only human nature to latch onto the higher figure when we see those reported in the press. This can lead to unrealistic expectations followed by a great sense of disappointment if the total that you are awarded is far less than that.
We don’t bullshit our Clients and we’re honest right at the start. Only in the most extreme cases will awards on the high end be made and only where your case has been presented at its height.
Most of our Clients are not interested in the level of the award anyway. They see that this is more about principle and are more intent on preventing others from experiencing the same treatment in the future. Generally, in discriminations cases it is genuinely not about the money but about doing something positive for others in the same category as you.
When we have an initial consultation we emphasise this. We also explore the other non-tangibles such as the long term effect of having a blemish on your employment record, what does that mean to your future employment prospects and career ambitions?
Unfortunately, no claim is ever 100% guaranteed to succeed and that is particularly true in the WRC and even more so in the Labour Court.
The chances are though that if you have been unfairly treated at work, you may well be to entitled compensation.
The best way to establish whether or not you have a claim is to speak with an expert. Anyone who knows this area will want to investigate the matter further before definitively advising you on your chances of success or whether or not you have a case at all. However, if someone is willing to take your case on a no-win-no-fee basis this is usually a good indicator that you do have a claim with a reasonably good prospect of success.
But, as with most things in life, there are just no guarantees. Even if your case seems ‘cast iron’ at the outset, evidence may emerge in the meantime may radically alter this assessment or it may turn out that the person who is liable to compensate you is completely worthless, meaning that the prospect of ever actually securing payment could be remote.
You need to concentrate on getting back to work: making sure that you find a new job without worrying about whether you’re going to be properly compensated for what happened. We concentrate on all of that for you: making sure that the people responsible for what happened to you are legally liable to compensate you.
If you’d like to find out if you have a good claim you should contact us or another solicitor who can give you this advice. At a consultation we will give you our opinion on how best to ensure that you recover the full value of your claim. However, we will not presume to give you anything like a final valuation of your claim at that stage and we would suggest that you should be extremely skeptical of anyone who offers to do so, as it’s just too early to be able to do so responsibly.
If your employer dismissed you, mistreated you, passed you over for promotion or you lost your job because of your pregnancy or some other protected ground or because you complained about how you were being treated, you could be entitled to redress.
If you have been the victim of unfair treatment, discrimination, bullying or harassment at work, the WRC process can seem daunting. You may need some help navigating it and someone who has your back to face up to your tormenter.
While it may be that someone who you work with is the person responsible for the mistreatment that you suffered, your case will not be against them per se but against your employer for allowing you to suffer this treatment.
In law there is a concept known as vicarious liability which makes an employer responsible for the actions of an employee where that employee carries out some wrong and the employer could have or should have prevented it. For example, if you find that one of your work colleagues is saying inappropriate things about you or to you and there is no policy in place to prevent such conduct or to allow you to raise an issue like this then your employer could be liable.
We specialise in employment law and act for employees who have been discriminated against, unfairly dismissed or badly treated at work. Every year we help hundreds of employees who were discriminated against. So if;
Then you may well be entitled to take action.
Our specialist team of employment advisors will listen to your case and then explain to you whether they think your employer has broken the law and what your legal options are. They will guide you through the steps involved and will ensure that you are given the best advice for your specific case. If your advisor believes it is in your interest to take your case to an employment tribunal, our team will support you throughout the entire process.
Our goal is always to achieve a fair outcome for our Clients normally in the form of compensation.
You don’t have long and the first thing that you should definitely do is make contact with a solicitor who specialises in employment claims.
Employment Cases generally must be commenced within six months of the last date of the conduct you are complaining of, so it is imperative that you get legal advice quickly. If that is that you were less favourably treated than another employee, then it is six months from the last date of such less favourable treatment. If it is that you were harassed, then it is from the last instance or incident that you felt was inappropriate. That doesn’t mean that incidents which only happened in the last six months can be looked at, we call it a continuum and if it can be established that the incident that occurred in the last six months is part of a continuum of inappropriate conduct then all of those instances can be looked.
To apply to the Workplace Relations Commission for redress you simply complete and submit the workplace relations complaint form online at the WRC’s website www.workplacerelations.ie.
It is crucial that when completing this form, you correctly identify your employer. Many employers operate under a trading name but have been constituted in the form of a limited company. You must ensure that you correctly name that limited company on the form, as this is the legal entity that owes you a legal obligation. You can check the employer’s legal identity here www.vision-net.ie.
Once the claim is lodged, you will need to draft written submissions outlining what you allege your employer did wrong and highlighting the parts of employment law that you say they contravened. We usually instruct a barrister to assist with this and to draft the appropriate legal submissions.
Once these submissions have been filed and served on the other side, they are given an opportunity to file a reply. In this they will no doubt deny what it is you are alleging and maybe set out what in their opinion occurred. Assuming liability is denied it is up to an adjudicator to decide on the issue.
This is done at a formal hearing of the case and each side is given an opportunity to introduce evidence both oral and written, to cross-examine witnesses and to make additional oral submissions on the matter. It is usually the cross-examination that people fear most! Often that is why it is useful to have someone who is familiar with the set-up alongside you or at least someone there to support you. But rest assured it is not quite as bad as you would think. People are generally quite polite, and the Adjudicators are very well seasoned and take much care to ensure that witnesses are protected from inappropriate badgering or haranguing by either side. We do find however that employers are invariably represented by solicitors and often legal counsel (barristers) as well.
Legally, the answer is an emphatic NO! Your employer cannot discriminate against you, penalise or victimise you simply because you are bringing a claim against them for something that happened at work. If you have already left or have been dismissed there is likewise very little that they can do. Your employer (or former employer) may not like the fact that you have brought a claim arising out of your employment and it would only be human nature for this to impact on the relationship between you but legally they cannot treat you in anyway which would be considered to be unfair. It would be nice to say that employers live in the real world and realise that employees who suffer ill-treatment at work are perfectly entitled to be compensated for that. But that is not always the case. Some employers will view an action like this as an act of disloyalty and an attack on their business and possibly them personally. However, if your employer fires you or treats you in any unfavourable way as a result of your making a claim against them then there are other remedies available to you under employment law.
In most cases, you have 6 months from the date of dismissal to make a claim. This can be extended to 12 months but only in exceptional circumstances. It is important to get it clear in your mind this is a limit and not a target and that you should aim to start the investigative process as quickly as possible
Big companies often do. And they think that this firm will produce some silver bullet and make it all go away. But, that’s not the way the law works. The law works on facts and evidence and legal and oral submissions and just because a big Dublin firm says it’s so, doesn’t necessarily make it so. They can’t change the law or your rights, they don’t know any more about the law than we do and it is certainly unlikely that they will have any more experience than us. And at the end of the day, regardless of resources or money, at the hearing of your case, there’s only one Adjudicator who can make the decision. And he will hear both sides and make a decision based on the oral and written submissions and there’s nothing a big firm or a big company can do to change these things. That’s not to say that an employer won’t lie to his representative and to the Adjudicator and there’s very little anyone can do about that. But the person who comes and lies to the WRC or the Labour Court will very quickly find their story unravelling in evidence and under cross examination. And we will be there with you throughout to make sure that happens.
We act in cases just like yours everyday of the week and we know our way around the WRC, the Labour Court and employment law. We will help you to ensure that you put your very best case forward, ensuring that you are given the best chance of success.
Currently there are very significant delays what with a combination of Covid and the impact of a recent Supreme Court decision called Zalewski. Usually however, a case in the WRC should take six to nine months to be heard. Once a case is heard, the Adjudicating Officer will not issue a decision there and then but will “reserve” the decision, which means that they will go off and review all of the evidence and the submissions and write up a detailed decision which will be issued to the parties by post. The AOs say that this will take just eight to ten weeks but in practice it can take far longer then that. When the decision is received, either party can appeal it to the Labour Court and if they choose to do so they must lodge their appeal within 42 days of the date of the decision. It is important to note that that is from the date of the decision and not from the date you received the decision and also that the time limit expires at midnight on the 41st day not on the 42nd day because you must appeal “within” 42 days.
