Rights Commissioner Service

Rules

An employee (or any trade union that the employee belongs to, with the consent of the employee) can present a complaint to a Rights Commissioner (see 'How to apply' below).

Before you make a complaint you should inform your employer that you intend to contact the Rights Commissioner Service. Where the complaint is about a statutory entitlement you should try and resolve the matter locally before applying to the Rights Commissioner Service.

When a complaint is made to the Rights Commissioner Service, it will allocate the case to one of the commissioners. The hearings are informal and are held in private, except for hearings under the Payment of Wages Act, which are held in public, unless the Rights Commissioner decides otherwise. In practice, however, members of the public do not attend such hearings.

In Dublin, hearings take place in the Labour Relations Commission but hearings are held in other parts of the country as the need arises. The Rights Commissioner may ask both sides to supply him/her with a brief outline of their case prior to the hearing. At the hearing, the Commissioner will ask each party to present their case and may ask questions. The parties will also be allowed to comment on the other party's submission and to ask questions regarding it. Each side may bring witnesses to the hearing. The Rights Commissioner may also speak to each party separately and explore the possibility of reaching a settlement of the dispute.

Depending on the legislation the Rights Commissioner issues a recommendation or a decision. All recommendations and decisions are binding on the parties unless they have been made under the Industrial Relations Acts 1969-2001. If an agreed settlement is not possible, the Rights Commissioner will issue a recommendation on the dispute.

This will be posted out to the parties within a few weeks of the hearing. At this stage, either party may appeal this recommendation - see below.

Rights Commissioner or Employment Appeals Tribunal?

Under the unfair dismissals legislation, the employee or the employer may object to the Rights Commissioner hearing. If this happens, the case can be referred to the Employment Appeals Tribunal (EAT). Likewise under the Industrial Relations Acts, an employee may seek a Rights Commissioner hearing, but if the employer objects, the employee would have to refer the matter to the Labour Court.

Essentially, the Rights Commissioner Service aims to offer the parties a quick and informal method of dealing with a dispute. In such cases where the employee has a choice as to the route that can be followed, some of the factors to take into consideration would be:

• How great is the amount of compensation that the employee might expect? For potentially larger awards, it may be best to by-pass the Rights Commissioner stage and apply direct to the EAT. This is because a Rights Commissioner recommendation for a large amount of compensation is almost certainly going to be appealed by the employer to the EAT anyway. Also in such cases the chances of getting a reasonable agreed settlement at the Rights Commissioner stage are unlikely. On the other hand, if an employee's loss is small, then the Rights Commissioner service may offer the best prospects of an early resolution of the dispute.
• If the employee is seeking reinstatement, the chances of achieving this may be greater at a Rights Commissioner hearing, which takes place relatively soon after the dismissal. By the time an EAT hearing takes place (approximately 6 months after the application), an employer will probably strenuously resist the remedy of reinstatement if only on the grounds that the employee has been replaced. Although this would not be an absolute bar to reinstatement, the EAT will take note of such practical difficulties, especially in a firm with few employees.
• Bringing the case to the Rights Commissioner initially may help to identify the main issues in the case. This may be of benefit to an applicant in preparing for a subsequent EAT hearing. Of course, the employer may equally benefit.
• The EAT can compel the attendance of witnesses, who will be sworn in and may be cross-examined. A Rights Commissioner hearing by contrast is much more informal. Parties may bring persons along to speak in support of their cases, but the Rights Commissioner cannot compel the attendance of such persons. At the hearing, there is no swearing in nor is there formal cross-examination. This contrast between the two hearings may be an important factor in a person's decision as to whether to take the Rights Commissioner or the EAT route. For example, if the dismissed employee wishes to have a current employee attend, such an employee may be very reluctant to attend a Rights Commissioner hearing of his/her own accord. An obvious reason for this would be fear of losing the job or at least suffering adversely in the job as a consequence of such attendance. On the other hand, an order for attendance from the EAT gives the employee no choice but to attend.
• Given the more informal nature of a Rights Commissioner hearing, the need for legal representation may be less likely than at the EAT.

Appealing a Rights Commissioner’s decision or recommendation

Depending on the legislation a recommendation or a decision of a Rights Commissioner may be appealed to the Employment Appeals Tribunal or the Labour Court and there are different time limits within which an appeal must be made. For example, under the Protection of Employees (Part-Time Work) Act 2001 an employee or employer can appeal the recommendation of a Rights Commissioner to the Labour Court. However under the Payment of Wages Act 1991 an appeal against a Rights Commissioner decision should be made to the Employment Appeals Tribunal. In both instances the appeal should be made within 6 weeks of the parties receiving the decision or recommendation.