The Supreme Court in Zalewski v. Adjudication Officer & Ors  IESC 24 identified the legislation governing certain WRC procedures as being inconsistent with the Constitution, namely: the conduct of hearings in private; the absence of a provision for an Adjudication Officer to administer an oath or affirmation; and the absence of a possibility of punishment for giving false evidence. The Workplace Relations (Miscellaneous Provisions) Act 2021 has been introduced to address these issues and comes into effect on Thursday 29 July 2021. From that date, please be on notice of the following:
Hearings in public and parties named in decisions
- All WRC hearings involving the administration of justice (that is all WRC cases save for those for disputes under s.13 Industrial Relations Act 1969), will be conducted in public unless the relevant Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of ‘special circumstances’, the proceedings should be conducted in private.
- By way of example ‘special circumstances’ may include the following non-exhaustive list:
- cases involving a minor;
- circumstances where a party has a disability or medical condition, which they do not wish to be revealed;
- cases involving issues of a sensitive nature such as sexual harassment;
- cases involving a protected disclosure where there is an issue of the disclosure being made in confidence;
- or cases which could result in a real risk of harm to a party if the hearing is held in public, or if the parties are named in the decision.
Following the Supreme Court’s rulings in this area, it should be noted that the fact that the parties both consider that there are ‘special circumstances’ or that an individual or company’s reputation might be impacted by having an employment or equality complaint ventilated in public does not automatically constitute a reason for the hearing to be heard in private. Ultimately, it is a matter for the Adjudication Officer to decide based on the facts of the case in accordance with the law and fair procedure. Such decisions will generally be made by the Adjudication Officer at the hearing though parties may indicate their views in advance of the hearing. Once it has been decided that a case is to proceed in public, then members of the public may be admitted into the hearing.
- Following a hearing, a written decision stating party names will be issued to the parties and uploaded to the WRC website. A fully or partially anonymised version of the decision may be uploaded where the Adjudication Officer decides, of their own motion, or following an application from a party to the proceedings, that due to the existence of special circumstances, the decision should be anonymised.
- WRC case lists will continue to be published weekly with case reference details only, to facilitate applications by the parties at the hearing. As all hearings are currently being held remotely in accordance with Government health guidelines, once the Adjudication Officer has confirmed their decision in relation to the hearing being held in public, as the case may be, members of the public will be admitted into the virtual hearing room. If the Adjudication Officer decides that the hearing should be held in private, members of the public will not be admitted.
Evidence on oath or affirmation
- During a hearing, the Adjudication Officer may take evidence on oath or affirmation. The Adjudication Officer will explain to the witness (and interpreter, where appropriate) that by swearing an oath or making an affirmation, the witness (and interpreter, where appropriate) is promising to tell the truth, and that giving false evidence after doing so is a criminal offence punishable by way of imprisonment and / or fine. The WRC has issued guidelines with further information for witnesses and the text of the oath and affirmation set out for reference: Workplace Relations Commission – Guidelines on Oaths and Affirmations.
- In light of Government health guidelines, parties and witnesses who wish to swear an oath should provide their own physical or e-version of the particular text to which they wish to refer. If they require assistance from the WRC to facilitate this, they should email email@example.com 10 working days in advance of the hearing. This step is not necessary if a witness chooses to make an affirmation.