1. Introduction

Employees excluded from the protection of the Unfair Dismissals Acts 1977 to 2015 — typically by reason of insufficient service — may, in some circumstances, refer a dispute concerning their dismissal to the WRC under Section 20(1) of the Industrial Relations Act 1969. The Section 20 jurisdiction is a non-binding recommendation jurisdiction.

This article sets out the scope of the Section 20 jurisdiction, the procedural requirements for engaging it, the types of recommendation that the WRC may issue, and the practical considerations that arise where an employee considers a Section 20 referral as an alternative to an unfair dismissal complaint.

2. Legislation and Case Law

Section 20(1) of the Industrial Relations Act 1969 (as amended) provides that an employee may refer a trade dispute concerning him to the WRC for investigation and recommendation. The reference must be made by the employee personally (or by a trade union on his behalf) and must concern a trade dispute as defined by Section 3 of the 1969 Act.

A trade dispute includes a dispute as to the dismissal of an employee. The Section 20 jurisdiction is therefore available in dismissal cases where the employee is unable to bring an unfair dismissal complaint by reason of insufficient service or other statutory exclusion.

The WRC’s role under Section 20 is to issue a recommendation. The recommendation is not legally binding on either party. The recommendation may, however, carry significant moral and reputational weight.

The Section 20 procedure is initiated by the filing of a Section 20 complaint with the WRC. The employer is invited to participate. Where the employer agrees to participate, the WRC investigates the dispute and issues a recommendation. Where the employer declines to participate, the Section 20 jurisdiction is, in practice, ineffective. 

3. Decision

The recommendations issued by the WRC under Section 20 vary widely. In some cases the WRC issues robust recommendations finding that the dismissal was unfair and recommending compensation. In others the WRC declines to make any specific recommendation.

The threshold for participation by the employer is, in practice, low. An employer who declines to participate may be perceived as having something to hide, and the resulting recommendation — even if formally non-binding — may be more critical than would have been the case had the employer engaged.

Where the employer participates and a recommendation is issued, the parties typically discuss whether and how to implement it. The recommendation may form the basis of a settlement; it may be partially implemented; or it may be ignored.

The Section 20 jurisdiction is also relevant in cases where an employee has both a Section 20 complaint and a complaint under another statute. The two complaints may proceed in parallel and may, in some cases, be addressed at the same hearing.

4. Takeaway

The Section 20 jurisdiction provides an avenue for employees excluded from the Unfair Dismissals Acts to obtain a WRC recommendation. The non-binding character of the recommendation is the principal limitation on its practical utility.

For employees, the practical advice is to consider Section 20 where no other avenue is available. A WRC recommendation, even if non-binding, may carry weight in negotiations and may form the basis of a settlement.

For employers, the practical advice is to consider carefully whether to participate. A refusal to participate may be reputationally damaging and may invite a more critical recommendation than would otherwise have been the case.

Practitioners should be alert to the time limits and procedural requirements. The complaint must be made within six months of the dispute (extendable on reasonable cause).

5. Further information

This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.

6. About Crushell & Co

Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.

We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.

Connect: @CrushellLaw or www.crushell.ie