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From Accountingnet.ie In Business
JURISDICTION An employer should firstly consider whether there any preliminary arguments to be made before the EAT in respect of their jurisdiction to hear the case.
PREPARATION PRACTICAL STEPS The first step in preparing for the hearing is to carefully review facts of the case. It is helpful to compile notes to assist you on the background. The employer should carefully check the details submitted by the employee in the Form T1-A for example the rates of pay, date of commencement and date of dismissal. The EAT will generally ask the parties at the outset of the case if these are agreed. An employer should ensure that they have all relevant documentation to their claim which may include the following:
You will need to make sure that you have a booklet containing copies of all relevant documentation ready for the Tribunal. The booklet should be clearly indexed and you should have a copy of the booklet for the three members of the Tribunal, a further copy for the Secretary of the Tribunal and copies for both sides. WHAT HAS THE EMPLOYEE BEEN DOING SINCE DISMISSAL? An employee is under a duty to take steps to mitigate or reduce their loss following a dismissal. Close to the time of the hearing, your solicitor will usually write to the employee for details in relation to their loss to date. Information should be sought, but sometimes is not forthcoming, in relation to the employee’s earnings since termination, their efforts to seek alternative employment and in circumstances where work has not been sought, why this is the case. WITNESSES A decision will need to be made as to who are the appropriate witnesses and it is useful at an early stage to take statements and consider what evidence is going to be relied upon. If Subpoenas are necessary, for example where you need to call a witness who will not come voluntarily, an application will need to be made before a sitting division of the EAT in order to obtain a Subpoena. If you wish to admit the company doctor’s report you will need to notify your company doctor that they will be required to give evidence. In a redundancy dispute, the employer may need to have their Accountant ready to give evidence as to the financial situation of the company. All witnesses should be written to in advance of the case to inform them of the date, time and location of the hearing once the hearing notice is received from the EAT. ADJOURNMENTS As soon as an employer is in receipt of the hearing date, they should ensure all necessary persons are available to attend. If not, a postponement application must be made to the EAT within 5 working days of receipt of the notification. Such an application can be made at any sitting of the EAT and practice is that they are made prior to hearings listed on that day. It is important to contact the other side to get their consent in writing to the adjournment as it can be very difficult to get a postponement without the consent of the other side. An application without consent is especially difficult for the employer since the employee may be out of work and any delay would keep them out of pocket or out of their position for a longer period of time. ON THE MORNING OF THE HEARING Attendees at the hearing should be tidily and smartly dressed but parties are not required to wear formal attire. On the day of the hearing, the Secretary to the EAT will generally approach the parties before the hearing commences to take the names of the parties present. Hearings are listed for a half day unless the EAT have been notified in advance that the hearing is expected to take longer. If a hearing is not concluded in the allocated time, it will continue on a separate day. Often, parties take the opportunity before the hearing to discuss the case with the other side if settlement discussion appear likely. If settlement is reached, the parties should draft and sign a settlement agreement where the employee agrees to withdraw some or all of their claims in consideration of the settlement monies agreed. The EAT should be informed that the case has settled and the application should then be withdrawn by the employee with liberty to re-enter the proceedings within a period of time to allow the terms of the settlement agreement to be implemented. DURING THE HEARING The order of evidence at the hearing will depend on the type of case being heard. In an unfair dismissal case the employer bears the burden of proof to show that the dismissal was fair and will therefore present their evidence first. In a constructive dismissal case, the employee must show it was reasonable for them to leave employment and will give evidence first. Witnesses on behalf of the employer will be expected to answer questions when giving direct evidence and answer questions by the employee’s representative which is called cross-examination. The individual giving evidence will also need to answer any questions that the Tribunal may put to them and, therefore, they should be very clear about dates and events which they should be able to recall from memory. The person is usually provided with a booklet of documents to assist them with any correspondence but witnesses will not usually be allowed to bring up their own notes when giving evidence. Witnesses should also be aware that they will be giving evidence under oath and are normally required to swear on the Bible before giving evidence or give a solemn oath. It is optional, and subject to the discretion of the EAT, whether parties wish to make opening and/or concluding statements. Notes should be taken of the evidence taken at the day of the hearing. This is of key assistance if the case runs on for hearing or is appealed. A decision will be issued within approximately six months and will be posted to parties and to their representatives. Parties then have six weeks from the date on which the parties were notified of the decision to appeal the decision to the Circuit Court.
Alice Crowley - Ronan Daly Jermyn Solicitors Ronan Daly Jermyn is a leading Irish law firm offering specialist legal advice. The firm represents local, national and international clients engaged in a wide range of activities, as well as public sector bodies and government agencies. A progressive modern law firm, RDJ offers a partner-led service working closely with our clients to ensure their legal requirements are fulfilled in a proactive commercial fashion. Ronan Daly Jermyn tel +353 (0) 21 480 2700 email: info@rdj.ie © Copyright 2005 by Accountingnet.ie |
