The Gazette 1980

GAZETTE

SEPTEMBER 1980

It is evident from the foregoing, that Trade Union and

employer organisations engaged in the Industrial

Relations mechanism, prefer to have their cases heard by

a Rights Commissioner, and this appears to be a most

successful method of dealing with cases as evidenced by

the surprisingly small percentage of appeals from Rights

Commissioners heard by the Tribunal. The legal

profession have a respectable share of the representation

for both sides, but there remains a very large number of

Claimants and Respondents who appear with no

representation at all. The average award of £1 , 228 in

Unfair Dismissal cases would compare favourably with

the majority of Circuit Court awards, the main difference

being in the area of costs in that each party must bear

their own costs before the E.A.T. win, lose, or draw. The

average award figure is somewhat misleading, in that the

majority of awards tend to be around the £ 7 50 mark, and

are boosted by a number of five figure awards in the year.

There is a disturbing number of claims brought under

the Minimum Notice Act. Entitlement under the Act is

very simply assessed, and the only significant ground of

dis-entitlement is misconduct. Many Claimants include

Minimum notice claims with U.D., and Redundancy

claims, but a good proportion of cases are Minimum

Notice only. In reading cases for this survey, I noticed

many simple Minimum Notice cases brought solely due to

the employers ignorance of the employees entitlement. In

one case brought solely under the Minimum Notice Act,

both sides retained Solicitors, and the case went to a full

hearing, resulting in an award of less than £20.

The figures on settlement of cases are a little misleading

also. While 6 9% of cases settled were settled by

Solicitors, of cases involving Solicitors, only 6.4% were

settled. The FUE were involved in 10.6% of all cases

settled, but of cases involving FUE, 14% were settled.

The overall impression given by the results of this

survey is that the Employment Appeals Tribunal is

providing a very valuable service in a speedy and efficient

manner. The Tribunal have been at times, criticised by

both employers, and employees as being biased in favour

of the other side, but the decisions of the Tribunal do not

bear this out. I would have two minor criticisms of the

workings of the Tribunal. Firstly, that by not awarding

costs against a Claimant, the Tribunal have allowed the

situation develop where an employee properly dismissed

can put his former employers to great trouble and expense

by filing a claim, and conducting his own case at no cost

to himself, even though his case be devoid of merit.

Secondly, that the Circuit Court Rules governing cases

appealed from the Tribunal to the Circuit Court

S . l.

No. 10 of 1979 - do not require an appellant to notify the

Tribunal of an appeal and it is therefore most difficult to

follow cases once and they are dealt with by the

ribunal.

Addendum

Since the time of writing the above, details of new

Rules of Procedure for Industrial Tribunals in England

(which come into force on October 1st next), have been

published and are deserving of study by the Department

of Labour. The new rules cover complaints for Unfair

Dismissal. Redundancy. Sex and Race Discrimination,

together with various other employment protection

complaints. It should be remembered that English

Tribunals covcr a far wider range of subjects than our

.A.T. The parallel of our E.A.T. in England is the

Industrial Tribunal from which appeal lies to the

Employment Appeals Tribunal on a question of law only.

The English E.A.T. is equivalent to the High Court, but

with procedure akin to that of the Industrial Tribunals.

The main changes in the new rules are:-

(a) The existing rules relating to Discovery and Further

Particulars are extended. There is a completely new

provision providing for pre hearing assessment on the

application of one of the parties, such assessment to

be on representation submitted in writing and oral

argument —no mention is made of hearing evidence.

If the Tribunal considers that a complaint is unlikely

to succeed or a party has no reasonable prospect of

success, it can given an opinion that if such party

continues their case, costs may be awarded against

them. The case then goes before a completely new

division of the Tribunal for a full hearing in the

normal way.

Our rules make no provision for particulars or

discovery at any stage of the proceedings.

(b) Tribunals are not bound to observe formal rules

about the admissibility of evidence

this is already

the case in England and Ireland, and now receives

statutory recognition.

a party to make an opening or closing statement.

(d) A Tribunal can award costs where a party has acted

'frivolously or vexatiously' or 'otherwise unreason-

ably'. Such costs can be awarded in a fixed sum, and

can include 'expenses'. Orders of this nature will, of

course, be tied in closely with the pre hearing

assessment at (a) above.

While amendments such as these, if introduced into the

working of the E.A.T. in Ireland, would not be welcomed

by the non-lawyers who appear before the Tribunal, they

would nevertheless enable the Tribunal to retain its

"Lega l" status which it is in danger of losing. This status is

most important in setting the Tribunal apart from the

Labour Court whose attraction is its informality, and the

non-enforceable nature of its decision. We do not need

another forum for the informal solving of problems, rather

we need a formal forum with set rules, yet retaining

discretion, which will demand the respect necessary for its

operation within a legal framework such as exists at

present.

A comprehensive selection of old prints and early

Irish maps always on view at the

Original Print Gallery

6 Arran Quay

Dublin 7

Tel. 725227

Monday-Saturday 9 a.m.-5 p.m.

! 48