The WRC has recently published its Annual Report; it is the first report published under the incoming Director General of the WRC, Ms. Audrey Cahill. Here at ISME, we wanted to save you the time of reading the comprehensive report released by the WRC and instead give you an overview of the aspects of the activities of the WRC that may be of interest to you. The number of hearings and decisions processed by the Workplace Relations Commission last year increased by a further 12% on the 2022 hearings.
Complaint Breakdown:
6,172 complaint applications encompassing 14,158 individual complaints were received by the WRC in 2023, a decrease of 4.5% and 6.5% respectively compared to 2021. The main types of complaints were as follows:
- Pay (3,662) – by far the main complaint received by the WRC
- Unfair Dismissal (1,875)
- Discrimination/Equality/Equal Status (1,817)
- Working time (1,554); – Breaches of the Organisation of Working Time Act 1997
- Terms & Conditions (1,387)
- Trade Disputes/Industrial Relations (1,104)
The WRC noted a considerable increase in relation to complaints under Schedule 2 of the Protected Disclosure Act, 2014 of 201% compared to 2022.
While claims regarding Unfair Dismissals rose by over 300 cases compared to 2022, cases related to Equality remains high. Under this particular legislation, the majority of referrals were under the ground of Disability (331) followed by Gender (322), however, a considerable increase of 135% was noted under the ground of Sexual Orientation and Race increasing by 64% since 2022. Complaints related to Family Status rose by 28% to 68 cases
The WRC conducts hearings “in person” and “remotely” with an average of 70% being “in-person” and 30% conducted remotely. A total 4,765 Adjudication hearings concluded in the period 1st January to 31st December 2023 – an increase of 12% (4,253) on hearings concluded in 2022.
Mediations
In 2023, 1,926 cases were selected for mediation, 785 of these cases progressed to full mediation where both parties agreed to participate. An additional 127 mediations took place in 2023 year on year representing a 19% increase in mediations compared to 2022 and a 57% increase compared to 2021.
Something of note here for employers is the reminder that the WRC provides two distinct forms of mediation service: pre-adjudication mediation (face-to-face and by telephone) to assist with the resolution of a specific complaints referred to the WRC, and workplace mediation to resolve ongoing interpersonal issues between persons or groups of persons. The latter can be applied for by all employers that require the service.
Decisions
Almost 3,000 (2,951) Decisions and Recommendations issued in 2023 relating to 6,385 individual complaints. This represents a continued increase amounting to 50% (1,968) that issued in 2022. In 2023, The WRC was notified of 324 determinations issued by the Labour Court in 2023. Of the decisions made, 176 were upheld, 68 varied, 75 were overturned and the remainder were out of time.
Most notable cases
Amy Farrell v. An Garda Síochána
Legislation: Protection of Employees (Fixed-Term Work) Act 2003, objective condition, standing, locus standi
Complainant started work as a cleaner with the Respondent in August 2016. Her role was classified as a relief cleaner and she was on a fixed rate of pay, aligned to the first point of the salary scale for the grade of cleaner. She did not receive incremental credit, paid sick leave or other entitlements to which permanent employees in the grade of cleaner were entitled. After the Complainant’s union raised the issue of a contract of indefinite duration, the Respondent issued a contract of indefinite duration to the Complainant which was backdated to take effect from 1 April 2019 and not from the original start date from 2016.
Learning from Case: Providing Employee Documents confirming the terms of their employment is critical. While this complaint was not well founded, the complainant was deemed to have been in continuous employment with the respondent from the first date of employment and any breaks in service were deemed to have been periods of Lay-Off. Therefore she was not employed on a serious of Fixed Term Contracts.
Catherine Kelly v. An Post
Legislation: Sexual harassment, Employment Equality Acts 1998 to 2021
Alleged that while she was talking to another colleague, he came up behind her and put his hand on the inside of her thigh. She pushed him away stating that she had warned him before not to do that.
The Complainant reported the matter to the floor manager and provided a written statement. CCTV of the incident was obtained and statement from a witness.
The matter was investigated although the Complainant was never interviewed and advised there was insufficient evidence as the CCTV did not show the incident. Upon appeal, the Complainant was not asked about events that led to her making the complaint and CCTV was not reviewed. The original outcome was upheld.
Learning from Case: Section 14A Employment Equality Act 1998 (“EEA”) provides that if sexual harassment by someone other than the employer can be regarded as discrimination by the employer, the employer may rely on the defence that they took such steps as were reasonably practicable to deal with the allegation of sexual harassment.
The duty of the employer is that complaints of this matter should have been taken seriously and investigated in accordance with the Dignity at Work, AntiBullying and Harassment policy with the appropriate independent investigators appointed.
€53,560 compensation awarded to the complainant.
Thomas Doolin v. Eir Business Eircom Limited
Legislation: Employment Equality Acts 1998 to 2021
The Complainant commenced employment with the Respondent in September 2019. He worked as a Desk Support Agent on a salary of €35,000 a year. The Complainant was due to turn 65 in July 2023. In January 2023, he was notified of his upcoming retirement after which he made a formal request to work past the age of 65. The Complainant requested to continue working past the age of 65 however the request was denied and this decision was upheld following an appeal.
Learning from Case: A mandatory retirement age raises an inference of discrimination. The Respondent submitted that the following were legitimate and objective justifications for its mandatory retirement age: the need to promote intergenerational fairness, the necessity for effective succession planning, and the importance of maintaining age balance in the workforce to uphold the individual dignity of an employee.
The Adjudicating Officer assessed the Complainant held a junior role and it was unlikely that retaining him in employment would have impeded the career progression of any other employee.
The Complainant be re-instated in his previous role with effect from the date of his retirement.
The complete WRC Annual Report 2023 can be found on the ISME HR Hub.
If perhaps you require any HR assistance for your business don’t hesitate to contact the HR Team via HR@ISME.ie , or alternatively phone 01 6622755 Option 2.
