Parallel Industrial Relations and Employment Rights Claims
The very basic tenet underpinning industrial relations dispute resolution, is that disputes are capable of voluntary resolution through negotiation, compromise and eventual agreement. Often, the agreement comes about following acceptance of a recommended resolution via agreed third party intervention by the Labour Court.
Generally, for a voluntary agreement to materialise between disputing parties, the relationship between the parties will be characterised by the presence of certain factors or conditions. Chief among them, a genuine intent, preference and willingness to resolve their differences through compromise and agreement. It is under such conditions that a Labour Court recommendation, which captures the Court’s opinion on the merits of the dispute and the terms upon which it should be settled, stands the best chance of bringing finality to a dispute.
The Labour Court frequently encounters disputes between parties where the approach by the worker complainant is multifaceted.
This may involve multiple appeals where the worker complainant originally initiated complaints under employment rights statutes, which have justiciable legally enforceable outcomes, together with an industrial relations referral or referrals, which are a voluntary process where no matters of law are involved. Alternatively, there may be industrial relations referrals, initiated directly or on appeal to the Court, in conjunction with other disputes in law between the parties being dealt with, or in prospect, in a different legal forum.
This gives rise to a situation where the worker is apparently seeking, under an industrial relations referral, to resolve certain disputes through voluntary agreement with their employer (or former employer). While at the same time litigating matters of law against that employer.
A dispute resolution strategy involving such a mix of industrial relations referrals and complaints in law between the disputing parties poses significant challenges for the Court. Not least the fact that such disputes, under the different regimes, often involve overlapping or related facts.
A key characteristic of every Labour Court industrial relations recommendation is that it represents the Court’s opinion as to how the dispute should be settled. That opinion is based on the dynamics of the dispute and can be considered to be the Court’s best estimation, following thorough engagement with the parties, of what is realistically capable of being voluntarily accepted by them as a final settlement of the dispute between them.
It is the experience of the Court that there is little or no reality to the prospect of there being genuine desire, intent and willingness between parties to reach voluntary agreement on a matter when the same parties are also engaged in justiciable legally based disputes in other, often related, matters.
In such circumstances, the Court may simply conclude that any opinion it may formulate on the merits of the substantive matters in dispute between the parties has no realistic prospect of being voluntarily accepted and may therefore recommend that the parties regard their industrial relations dispute as being resolved.
