Written Submissions
From its inception, the requirement on parties to provide the Court with written submissions setting out a summary of their respective cases has been an important and core procedural feature of the workings of the Court.
The requirement, stipulated by first Chairman Ronald Mortished, for the provision of a written document containing ‘verifiable’ details, to be presented in court, and the accompanying exacting procedural standards, was said to be something of a culture shock for the industrial relations professionals of the day who had to make their cases before the Court.
In a non-legal forum, where there was no evidence being presented, and no witness testimony being heard, written submissions would aid the presentation of cases, bring focus to salient and kernel matters, identify common ground, contribute to an expedient and efficient process and ultimately assist the search for a resolution of the dispute before the Court.
Today, the Court is obviously no longer solely an industrial relations tribunal but is the single appellate body for all disputes in employment matters, both industrial relations and employment rights.
Accordingly, theRulesof the Court set out specific requirements for the provision by the parties of a written submission setting out a summary of their position on the factual and legal issues arising. The rules vary depending on whether the appeal is an industrial relations matter or an appeal under the various employment rights enactments:
· Rule No’s 7-14 deal with submissions for cases under: (1) the Unfair Dismissals Acts; (2) the Employment Equality Acts; (3) the Protected Disclosures Act; (4) the Safety, Health and Welfare at Work Acts (NOTE: hearings of appeals under these four enactments will not be scheduled until submissions have been received from the parties in accordance with the Rules).
· Rule No’s 30-35 deal with submissions for cases under other employment rights enactments.
· Rule No’s 77-78 deal with submissions for industrial relations cases.
The rules on submissions cover matters such as:
· Deadlines for provision of the written submission to the Court and the opposing party, including procedures for seeking deadline extensions in particular circumstances;
· The number of copies to be provided;
· The expected content of the submission – a summary of the facts and legal arguments;
· Accompanying documents/appendices/caselaw;
· Witness statements – a brief summary of the expected evidence of a witness.
It is important to remember that, although it is an appellate body dealing with appeals of cases heard at first instance at the Workplace Relations Commission (WRC), all hearings before the Labour Court are conducted on ade novobasis. This means that the matter is heard afresh by the Court, as if it had not been heard at all before. While submissions and documents may have been previously provided by the parties to the WRC for the first instance hearing, these papers and documents are not passed by the WRC to the Labour Court. The two organisations are statutorily independent and separate bodies and do not interact in this way at all. Therefore, submissions must be submitted again by the parties directly to the Court, in accordance with the rules of the Court.
As referenced earlier, there is a requirement that written submissions for cases under certain employment rights enactments (currently, the four specific statutes mentioned above) be provided in advance of the hearing being scheduled.
While it is of course the case that advance understanding of the position of the parties allows for greater efficiency and efficacy in ultimately determining matters, there are also additional necessary practical benefits in terms of the scheduling of hearings.
Advance submissions which summarise the case, with supporting documentation, facilitate the assessment of the likely required hearing time for the appeal. In these types of cases, when there is sight of the detail of the matters in issue, the legal points arising and the likely witness evidence, then the required hearing duration can be more accurately evaluated. This assists in reducing the possibility of hearing dates for the parties being fragmented and numerous.
At a hearing, unless it is deemed convenient to take the written submissions as read, the parties will, in turn, stand and read the submissions which they have provided.
The parties will then be given an opportunity to comment on each other’s submissions. This is not an invitation to repeat arguments already made in their own submission but rather is an important discrete opportunity for parties to draw the Court’s attention to aspects of the opposing submission with which they disagree or wish to challenge.
Ultimately, it is open to the Court to accept submissions which are unchallenged verbally when invited by the Court to do so, or unchallenged in the opposing written submission or unchallenged in oral evidence subsequently.
Finally, it is important to recall that while written submissions are an extremely important practical requirement and must be provided as per the Rules, they are not regarded as evidence and will not be treated as proof of anything. Evidence before the Labour Court is taken in the form of sworn oral evidence provided by a witness in order to assist the Court in resolving a factual dispute.
As an example, a submission from a party may state that certain words were said by someone to someone else. Sworn oral testimony from the opposing party may say that certain other words were used, or no words at all. In determining how that factual dispute should be resolved, the Court will place greater weight and importance on sworn evidence over written submissions
