Preparing for a Rights Commissioner Hearing

Rights Commissioners operate under the auspices of the Labour Court. Their job is to arbitrate in disputes between individual workers and their employers. They are the first port of call available to an employee who believes that he or she has been treated unfairly.

It is a task which requires considerable patience and a deep understanding of human psychology.  Rights Commissioners are empowered to hear disputes under the Industrial Relations Acts provided the employer in question does not object and so long as the dispute does not relate to hours of work, rates of pay or holidays. 

Hearings before a Rights Commissioner take place in private - except where the dispute has been referred under the Payment of Wages Act, 1991. Hearings under that Act are generally held in public.  If you are based in Dublin you will normally be attending a hearing at the offices of the LRC, Haddington Road, Dublin 4.  If you are outside the Dublin area the Rights Commissioner will travel to your area and will normally take a room at a local hotel laid out for the event.

A party to a dispute may object to a Rights Commissioner’s investigation where the case has been referred under the Industrial Relations Acts, 1969–1990 or under the Unfair Dismissals Acts, 1977–2005. Where such an objection is made, the Rights Commissioner cannot investigate the case. The applicant can instead request the Labour Court or, depending on the legislation, the Employment Appeals Tribunal to hear the case. A similar right of objection does not apply for referrals under the other Acts. A Rights Commissioner investigates such cases in the first instance.
 
The Labour Court is there to adjust any errors that might be made. The fact that a recommendation by a Rights Commissioner is subject to appeal is, in fact, a source of comfort and support. Frequently, their recommendations are overturned, though they are more commonly upheld.

No criteria are laid down to be followed when issuing a recommendation.  Considerable discretion is allowed.  It is entirely a matter for the Rights Commissioner to decide how to conduct a hearing. Rights Commissioners do not allow mobile phones, tape recorders, cameras or other recording equipment to be used at their hearings.

It is up to the claimant and the employer to decide if they wish to be represented at a Rights Commissioner’s hearing. A trade union, employer organisation, solicitor, friend or family member may act as the representative. Please notify the Rights Commissioners’ secretariat as early as possible of the name and address of your representative. Correspondence will then be addressed to that representative. Some experience has been that it helps if each party brings a companion to the hearing whether as a representative or not.

The Rights Commissioner Service takes an informal and non-legalistic approach to cases.  Prior to attending a Rights Commissioner hearing it is useful for employers to prepare a document called a “written submission”.  This essentially contains the background and the facts about what happened to the employee in the lead up to their complaint.  However, it does not have to be furnished prior to the day of the hearing.  At least 3 copies of this written submission should be made as a copy must be given to the Rights Commissioner and the employee.

The Rights Commissioner hearing normally lasts about 2 hours, however in exceptional circumstances it may take longer.  A Rights Commissioner may decide that a case needs more time and arrange a further date when the case can be heard.

At the hearing itself, the Rights Commissioner will tend to take a more interventionist approach and will ask questions of both parties.  As a traditional mark of respect when the Rights Commissioner enters the room, you stand up.  You should address him or her formally by their surname using Mr or Ms.  It is often the case that the Rights Commissioner will give time to the parties to see if an out of court settlement or compromise can be reached. 

The Rights Commissioner’s function is to issue decisions or recommendations based on the facts and evidence presented at a hearing. For this reason you must ensure that relevant information (such as witnesses, payslips, correspondence, etc.), is available for the hearing.  If a settlement is reached it must be put down in writing precisely on paper.  The Rights Commissioner will then adjourn the case for 1 month to allow the settlement to be carried out. 
It is normally the Employer and his or her witnesses will be called first to go through their evidence.  After each of these witnesses is finished the employee or his/her lawyer may question them.

Each party should ensure that they avail fully of their opportunity to state their case and to challenge the case of the other.

After the case is heard the Rights Commissioner will end the hearing and leave the room.  He or She will take a number of weeks to consider the case and come to a decision called a “determination”.  This will take about 8 – 10 weeks and will outline the reasons for the determination as well as any compensation or other redress that may be ordered.