In the beginning of 2009 new members of industrial tribunals, elected late last year, will gradually move into their temporary job as a judge.
The industrial tribunal is a court composed only of professionals (managers and employees of enterprises), who sit in equal numbers (two employees and two employers in principle, half in proceedings for interim relief), and consider all labor disputes. The observation of the functioning of these boards for many years led to the following observation: this is the meeting in the same jurisdiction, the best and worst.
Start with the best.
About half of the cases before industrial tribunals (1) find a solution during the conciliation phase. Indeed, any tribunals begins with such a phase during which the judges are trying to find a solution acceptable to both sides and that could put an early end to proceedings. And the number of cases that do not go to trial shows that they fulfill that role very well.
The best is also the ability of advisers to decide the more simple. Counselors are familiar with the normal operation of enterprises and can quite easily unravel the disputes relating to such payment of wages, the enforcement of collective agreements, working time etc. ..
But unfortunately there is also the worst.
Judgments of industrial tribunals are reviewed in the event of an appeal by the Social Chamber of the courts of appeal. However, experience in social room shows a particularly sharp challenge of the tribunal to give advisers to the more complex a satisfactory outcome. From my own observations, examination of thousands of decisions tribunals in social rooms of three different appellate courts over a period of about ten years, unfortunately, requires the conclusion that in too many cases advisors render decisions that are either incomprehensible or insufficiently motivated or not, are legally outliers, that when the case raises complex issues. A lawyer specializing in employment law told me a few weeks ago, and about all these judgments are difficult to accept: “Going to the court of appeal we win or we lose, but at least in reading the decision we finally know why” .
What is regrettable is that these are individuals who are paying the price.
Go to the court of appeal because you do not understand the decision at first instance and, therefore, not able to meet again means spending large sums in legal fees, sometimes to reach a decision the same as or similar to that of first instance, but otherwise motivated, not to mention the inability to turn the page in a dispute finally settled. It also wait longer for the payment of sums when they are due.
Should we then blame the advisers prudhommaux even that court and ask its maintenance in such conditions? The answer is certainly negative. Because judges of the courts to go to industrial tribunals when counselors fail to agree (either because both are for a solution and two for another, either because they can not find the proper solution legally) find that most of these professionals have a strong desire to do well, would like to learn more about labor law and make better informed decisions, not to mention the sometimes very long time before they make their decision and they are the first to regret. In other words there is in many advisors prud’hommes much goodwill and a desire to do well but soon hit the limits of the exercise.
Therefore, since a court is clearly useful in principle, should be given to those professionals who, lest we forget, this exercise next to their business, much more time to grasp the extensive legal and complex labor law, including its evolving jurisprudence, because all this takes a long time.
It should, because once elected they will have to immediately write judicial decisions, work for which they are unprepared, they receive specific training and then again, they have the time needed to justify their decisions by taking into account where a judge spends so many hours they need at least twice more.
Furthermore, especially in small towns, they need a more extensive documentation than that available to them, knowing that such documentation must be available at home where they perform some of the work of drafting.
Finally, if we want to require them for the provision of high quality, it is imperative that their pay up to the difficulties they encounter, their efforts accordingly, and they especially could have a paid time sufficient to produce decisions of minimal quality.
Today we are far from this ….