Employment Rights Appeals to the Labour Court…Part 3

Witness Evidence in Employment Rights and Labour Court Hearing Protocols

Scope of the Article

This series of articles is intended to give a guide to those dealing with an employment rights case before the Labour Court, on appeal from an Adjudication Officer of the Workplace Relations Commission (WRC). In the first part of this series Caroline Jenkinson, Strategic Adviser with Stratis, and Former Deputy Chairman of the Labour Court, covered The Workplace Relations Act 2015 and highlighted why it has caused a profound change to the number and type of cases coming before the Labour Court, when it became the sole appellate forum for all employment rights cases. She also covers referral of appeals of an Adjudication Officer to the Labour Court.

In this second part of this series I dealt with how to prepare for a Labour Court Hearing, who can represent the parties at hearings, how to prepare a submission for the Court, what should be included in the submission, the pitfalls to look out for. I will outline the Court rules for sending submissions and the different rules attached to employment equality cases and unfair dismissal cases.

In this edition I will give details on the question of the need for witnesses at hearings, and how the Court is likely to weigh up the evidence given. I will outline how the Court has been dealing with hearings during the Covid-19 pandemic; the need on occasions for a case management of the parties prior to the hearing taking place; what happens on the day of the hearing; and enforcement of Labour Court determinations.

Witnesses

In employment rights cases, it may be necessary to have witnesses where there is a conflict of evidence or where a party wishes to prove or disprove a particular fact to the Court. For example, if you have witnesses to disprove an allegation of breaches under the Organisation of Working Time Act, where it is alleged that a complainant did not receive his/her rest entitlements, it can be most helpful to a defence if you have witness to prove the contrary. Expert witness testimony can be helpful where for example a person alleges that they have a disability and an expert witness gives evidence to the contrary. In cases concerning allegations of penalisation, a complainant may call witnesses to prove that other employees whose circumstances were similar were treated more favourably by the employer and that certain occurrences only became an issue after the complaint was made.

Therefore, along with your submission, you will need to submit details of witnesses, if any, that you intend to bring to the hearing. You will also be required to provide a written summary of the evidence that the witnesses are expected to give. This will assist the Court to estimate the time which the case is likely to take and will provide you with the opportunity to be clear as to the import of their evidence.

The Court will take sworn evidence from witnesses, they will be required to swear an oath or make an affirmation before the commencement of the hearing. Attendance of witnesses is the responsibility of the party calling the witness. The Court may decide that it is not necessary to hear from all witnesses identified by the parties. Where a representative seeks to bring multiple witnesses, on some occasions they seek to bring 10 or more, the Court will generally hold a case conference to determine the nature of their evidence in order to determine whether or not they are all necessary.

Witnesses are first questioned by their own side, and then cross examined by the other side; members of the Court will normally also ask questions of the witnesses, to clarify matters arising.

There are a number of rules that apply to an examination-in-chief, i.e., when questioned by their own side: -

• a witness cannot be asked leading questions – a leading question is one which suggests. the answer desired or assumes the existence of disputed facts.

• a witness cannot give evidence by reading from a prepared script.

• a witness cannot be prompted by another person in Court.

• a witness is permitted to refresh his or her memory from a document provided that the document was either made or verified contemporaneously with the matter to which it relates.

A party cannot contradict his or her own witness.

When being cross examined by the opposing party, there are two principal objectives:-

• to elicit evidence which supports the version of events contended for by the party cross-examining,

• to undermine the credibility of the witness.

Subject to the general supervisory role of the Chair of the division any question may be put to a witness in cross-examination which is relevant to any fact in issue in the proceedings. Cross-examination is not restricted to matters covered in the examination-in chief. The rules as to the admissibility of evidence apply equally to testimony adduced in cross-examination.

The rule against leading questions does not apply in cross-examination.

Findings of fact will be made by the Court by reference to the evidence given. Witnesses become critical where there is a conflict of evidence on an issue that is central to the case. Their evidence can prove or disprove a particular fact in the sense that it makes the existence or non-existence of that fact more or less likely. Good management of witnesses is always advisable, both in terms of who to bring and how relevant their evidence will be. Be careful, sometimes witnesses can jeopardise your own case. If there are multiple witness to one incident, there may be no requirement for all to attend the hearing if they are essentially giving the same evidence. Deciding to call a witness gives the other side and the members of the Court an opportunity to cross examine. You never know what might come out in cross examination. A poor witness may jeopardise a case due to lack of credibility if their evidence does not hold up on cross examination. If the evidence is not in dispute or critical to the arguments then why call the witness?

While the Court is not required to apply the rules of evidence in the examination of witnesses with the same rigour as applies in a court of law, however, it does ensure that the procedures adopted are not unfair or in contravention of the rules of natural justice. The general guidelines to witness testimony apply - oral evidence is afforded more weight than documentary evidence; evidence that is independently corroborated has more weight than uncorroborated evidence; a version of events that has remained consistent carries more weight than one that has changed; a witness that is certain and confident in giving evidence is more likely to be truthful that one who is evasive and uncertain. Furthermore the Court will not allow questions which are considered to be improper, irrelevant or oppressive and will curtail cross-examination which is excessive in length. Where a party is unrepresented, or represented by a non-legal representative, considerable latitude is shown and assistance may be given by the Court - without being an advocate for their side.

The evaluation of evidence and the relative weight that is to be attached to evidence is a matter that is within the competence of the Court, very often this is down to applying ordinary logic and common sense. Inferences can be drawn from testimony which is inconsistent with any prior statement made by the witness; a failure to explain a particular occurrence or a failure to adduce rebuttal evidence that is available. The Court will look for consistency of evidence and make findings on the evidence adduced at the hearing, which will form an essential part of the decision making process. Provided the conclusions reached on the evaluation of evidence is not perverse, they are unlikely to be disturbed on appeal. In deciding what is probable, the Court may take as a useful starting point - what are the least likely explanations for what occurred.

In certain circumstances where it would be patently unfair to expect a party to prove something which is beyond their capacity of proof, the “peculiar knowledge principle” applies. This issue will be discussed in greater detail under the heading “The Burden of Proof”, in later articles in this series.

The Court has the power to summons witnesses to attend Court and/or to produce documents relating to any matter to which the proceedings relate. However, this power is discretionary and has rarely been used by the Court. A party cannot insist that a witness be compelled. However, in limited circumstances, the Court may issue a witness a formal witness summons where a party to a hearing notifies the Court that a certain witness that they consider crucial has refused to attend the hearing, and request the Court to issue a summons for that witness. In which case that witness is a witness for that party and cannot be treated as a hostile witness. Be aware of the potential hazards of requesting such a summons as the witness may not advance your case and cannot be subjected to cross examination by you.

In dismissal cases it is about what the employer knew at the time, assuming they conducted a full investigation and followed proper procedures, and not what comes out through witness statements and cross examination on the day. But this cannot be ignored. [see later article in this series on the Standard of Proof in dismissal cases.] The non-availability of witness will not normally be accepted as grounds for a postponement, however, there may be exceptional circumstances where the Court might decide that the evidence of the missing witness is imperative and make arrangements to take that evidence later.

Witness evidence at a Court hearing will take up substantial amounts of time, thereby necessitating adjournments of hearings, which can be both time consuming and costly. From the Court’s point of view each time a case is adjourned, the members of the Court need to refresh their memory of the case as it will have heard a number of cases in-between. If you feel your case is going to take more than the normal allotted time, then bring that to the attention of the Court when submitting your appeal/ notified that an appeal has been made.

Labour Court Hearings

Parties will be notified by the Court of the date and venue for the hearing. Hearings before the Labour Court in employment rights cases are held in public, however, an application may be made to the Labour Court to have the hearing, or part of the hearing, conducted in private due to the existence of special circumstances. Such instances are rare. Applications for a postponement must be made to the Chairman of the Court, however, in the interest of efficient service delivery to the public, the Court has a policy of only postponing cases in the most exceptional of circumstances.

Current Protocols During Covid-19 Pandemic

Due to Covid-19 and public health restrictions, in order to minimise the impact of the pandemic on its activities, the Labour Court developed the capacity to hear cases in a technology based virtual courtroom. Depending on the public health restrictions in place at the time, the Court may use a combination of virtual hearings by remote access and/or physical hearings in its re-configured Court rooms.

Where proceedings are identified as being suitable, they are listed for hearing remotely in a virtual courtroom using remote access technology known as Cisco WebEx. Participants need to have internet access and an enabling device. Parties are provided with an invitation to the hearing by email giving instructions on how to join the hearing in a virtual courtroom. On the day of the hearing, the Court Secretary will assist the parties to join, thereafter the Chairman of the Court Division will control the proceedings. We found the move to virtual hearing to be very successful and allowed us to continue hearing cases during the pandemic, however, not all cases were suitable for a virtual hearing, e.g., those requiring an interpreter to be present, such cases were postponed until it was possible to hold an in-person physical hearing. At the present time, the Labour Court has reintroduced physical in-person hearings.

The Labour Court is currently engaged in a digitisation programme which, when completed, will further develop the process of receiving submissions electronically. This process has progressed substantially during the Covid restriction period.

The Court May Hold a Case Management

In certain circumstances, a case management/conference may be scheduled before the hearing date. This is a meeting of the principles of each party, organised by the Court in order to focus on the core questions of fact and law to ensure that those issues are fully and comprehensively addressed by the parties in pre-hearing submissions. They can be used where it appears that issues of marginal relevance are being raised or where it appears that the whole case could turn on a single issue. In such circumstances, a case conference can be directed at refining the issues to be decided or to agree to have an issue which could be decide the whole case determined by way of a preliminary hearing. This can result in a more efficient use of the time allocated for cases and result in improved efficiency for all concerned.

Court Proceedings on the Day of the Hearing

Parties should arrive at the hearing venue at least 15 minutes before the hearing commences. The Court Secretary will be available on arrival to explain the formalities and protocol and for the parties to sign in before the hearing begins.

The Court Secretary will supply the names of the Court members prior to the start of the hearing. During the hearing the Chair of the Court may be addressed as “Chairman” or “Madam Chairman” and the members of the Court as Mr X or Ms X.

The Court Secretary will announce the case and the parties will stand when the Court enters and leaves the Court. Except in such cases as the Court considers it convenient to take the written submissions as read, each party will read their submission in turn and will then be invited to comment on the other party’s submission. This should not be taken as a further opportunity to re-state their case; rather it is simply an opportunity to comment on the opposing submission. To fully understand the case being presented, the Court will then proceed to ask questions of both parties.

The Court members are not advocates for either side. However, in an appeal made under an employment rights enactment, where one party is not represented by legal counsel or otherwise, the Court may provide some assistance during the course of the hearing. Any such assistance will be provided within the limits of the Court’s obligations to conduct a fair hearing.

All documentation submitted to the Court either in advance, during or after a hearing is also made available to the other party in the case. The Court will not accept information from one party on a private and confidential basis.

The Court does not make a record of the hearing available to the parties. With the permission of the Court, in employment rights cases only, parties may arrange to have a stenographer present at a hearing, at their own expense. The Court and the opposing party should be advised in advance of such arrangements. The Court will not require a copy of the Stenographer’s report.

Enforcement of Decisions & Determinations

After the hearing the Court will issue a written Determination/Decision as soon as is practical after the close of the hearing, usually within six weeks in employment rights cases. Employment Rights Determinations are appealable on a point of law only to the High Court and may be subject to judicial review.

Labour Court Determinations under employment rights may be enforced on application to the District Court after the expiration of 42 days from the date of notice of the Court’s decision. The Labour Court does not comment, advise or provide further material on Determinations that have been issued, it is functus officio and has no further function on the matter.

The Labour Court cannot award legal costs.

The next articles in this series with deal with issues arising in employment rights appeal cases including some of the preliminary issues, which arise in cases, for example does the complainant have local standi to take a case i.e., is the Complainant an employee? is the complainant in a category covered by the enactment. It will deal with the time limits for initiating a claim; is a claim is submitted out of time and what are the criteria for seeking an extension of time. It will look at the requirement for records to be kept for inspection by the Labour Court and deal with the importance of observing Codes of Practice. A complex issue in employment rights cases is the question of the standard of proof and the shifting burden of proof, in some types of cases, that issue will be dealt with extensively.

If you would like to talk to us about any of the above issues, please get in touch with Brendan McGinty, Managing Partner, Stratis Consulting, at brendan.mcginty@stratis.ie or any one of our Partners.

Caroline Jenkinson

Strategic Adviser with Stratis Consulting, and Former Deputy Chairman of the Labour Court

Stratis Consulting

‘Strategic Employment Relations’

T: +353 (0) 1 2166302

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