The Court's Industrial Relations Role
While the Court’s role in dealing with employment rights appeals is underpinned by law and legal processes, with redress options expressly prescribed by statute, the approach is not so defined when the Court is carrying out its industrial relations function in individual cases.
Save that the Court must always conduct a fair process, the Court is not dealing with matters of legal rights and obligations when operating within its industrial relations jurisdiction.
No evidence is taken in industrial relations cases and the Court does not hear witnesses in these cases. Instead, the parties, through written submissions and oral presentation at a hearing, will outline to the Court their respective positions on a dispute.
The Court’s approach, therefore, is not one that involves determining whether or not a there was a breach of employment rights and determining the appropriate redress. Rather the approach is one where the Court investigates a dispute between parties and seeks to give its opinion (in the form of a Recommendation) on the merits of that dispute and the terms on which it should be settled.
Importantly, the Court will not overlay an ‘employment rights’ approach on an industrial relations matter. Where, for example, an industrial relations referral includes a dispute about annual leave, the Court will not investigate that dispute by reference to any of the ‘Holidays’ provisions of the Organisation of Working Time Act, 1997. An industrial relations dispute concerning an alleged failure to pay correct wages will not be dealt with as if it were an alleged deduction under the Payment of Wages Act, 1991. Similarly, an industrial relations referral dealing with a complaint about the fairness or otherwise of a termination of employment will not involve consideration of the provisions of the Unfair Dismissals Acts 1977 to 2015. And likewise, the Court of Appeal decision in O’Donovan v Over-C Technology Limited will not feature in the recommended resolution of a dispute in relation to a short-service probationary dismissal for underperformance.
The Court, in industrial relations mode, is not determining right or wrong, declaring whether an infringement has occurred or finding fault. Instead, the Court focuses on listening to what the parties have to say about their dispute and, importantly, what possible resolutions the parties themselves envisage. The Court members will likely have questions for the parties to further their understanding of the dispute and what a possible resolution might entail.
A recommendation of the Court given under Industrial Relations legislation is not justiciable and has no legal effect. But it is expected that parties who have asked the Court for its opinion will give serious consideration to the recommendation as a means of resolving their dispute.
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