Witness Summonses
In an employment rights matter, the role of the Court in hearing an appeal is, at its most basic, to give the parties an opportunity to be heard and to present any evidence relevant to the appeal (Note: the Court does not hear ‘evidence’ in industrial relations cases).
In brief, this involves the parties providing the Court with pre-prepared written submissions which set out the facts of their case, the legal arguments being relied upon, summaries of any witness evidence being called by the parties, copies of any documentation being relied upon and copies of any legal precedents being relied upon.
Where facts are in dispute between parties, it is a matter for the Court, having heard the parties, to decide on the true factual position. In presenting their position on a factual dispute, a party may rely on its written submission and supporting documentation. Parties may also rely on oral evidence from witnesses whom a party calls to give sworn evidence to the Court at the hearing.
Sworn evidence is tested before the Court by way of the witness providing their direct evidence at the behest of the party who called them and then being cross-examined by the opposing party.
It is entirely a matter for the parties as to what, if any, witness evidence is called by them. No person, whether they are the complainant or a respondent in an appeal, is ordinarily obliged to provide evidence to the Court. However, in determining how a factual dispute should be resolved, the Court will place greater weight and importance on sworn evidence over written submissions.
While the Court can and does intervene where the relevance of the purported evidence of a witness is in question, it remains the position that it is the parties, and not the Court, that call the witnesses to appear before the Court. In practice, this means that it is fully up to the parties to make contact with their witnesses and make arrangements for their attendance at the Court to give their evidence.
The Court has had experience of parties expressing surprise and frustration when they learn at a hearing that a party or an expected witness has elected not to provide the Court with sworn evidence and will therefore not be available for cross-examination. In such circumstances, parties have sometimes protested at a hearing that the Court should in some way oblige the particular witness to enter the witness box and give sworn evidence.
The Court cannot, of course, compel such evidence of its own volition.
A party who wishes to ensure the presence of a particular witness to give evidence in an appeal in an employment rights matter may apply to the Court for a witness summons under Section 21 of the Industrial Relations Act, 1946.
Rule no. 58of the Labour Court Rules 2024 sets out the steps which must be followed by an applicant for a witness summons, as follows:
· The application must be made to the Court at least 10 working days in advance of the hearing so as to ensure that the intended witness has adequate notice of any requirement to attend the hearing of the Court.
· Before issuing a summons, the Court needs to be satisfied:
o (a) that the person concerned has relevant and admissible evidence to give in relation to facts at issue in the proceedings and
o (b) that the prospective witness has been asked in writing to attend and is unable or unwilling to attend unless compelled to do so. Where the application is for a subpoenaad duces tecum(requiring the witness to produce documents), the Court should have material before it which establishes that the documents sought are relevant to the issues in the proceedings.
· Where the applicant has requested a witness to be summoned to give evidence on their behalf:
o (a) The witness will appear as the applicant’s witness and consequently, the applicant is not permitted to contradict any evidence that the witness may give (in certain limited circumstances, an applicant may seek the Court’s permission to treat as ‘hostile’ a witness called by them such that they may cross-examine the evidence of their summoned witness. Such permission would only be granted where, for example, the Court is satisfied that the witness has not simply given unfavourable evidence but has given evidence which is inconsistent with a previous statement).
o (b) The applicant will be responsible for any expenses incurred by the witness in attending the hearing.
It must be noted that while the Court may, on the application of a party, issue a witness summons to a person to compel their attendance, the decision to call the witness remains that of the applicant party. The Court is essentially facilitating the compelled attendance of a person called by a party to the hearing.
(see also the Court’s previous post dealing with witnesses at hearings)
