Dealing with Adjudication Complaints
During the Period
of
Covid19-related Restrictions
Introduction
Similar to many other public bodies, the Covid-19 pandemic has presented a challenge to the WRC in relation to the delivery of its core services. In this regard, the WRC is planning its work programming, not only in relation to adjudication, but all services, in line with Government and HSE advice.
Currently, the WRC has postponed all adjudication hearings, face-to-face conciliations and mediations, and cancelled on-site inspections until after Tuesday 5th May 2020. However, the WRC is still providing mediation of individual complaints by telephone and conciliating collective disputes in like manner.
While the current crisis is, by its nature, time-bound, it is prudent that the WRC explore alternative approaches to providing an opportunity for parties to have complaints processed in the event that the restrictions currently in place are extended beyond 5 May or amended in a fashion that does not provide for immediate resumption of face-to-face hearings.
In this regard, a scoping exercise taking account of ICT, legal, procedural/process issues, case-type and end-user capabilities and appetite is under way within the WRC. This exercise is considering the desirability of parties to engage to the greatest extent possible with our telephone mediation service to resolve complaints and/or disputes amicably and by agreement and is also considering the feasibility of processing complaints to decision by way of written procedure where appropriate or “virtual” hearings also where appropriate.
Where telephone mediation is not identified by the parties to the dispute as a viable option in the particular circumstances of the case, or telephone mediation does not resolve the matter where utilised, the WRC must ensure that, where complaints proceed to adjudication, and are identified as suitable for disposing by way of written procedure or “virtual” hearing, that the disputant parties obtain a fair hearing and a considered decision taking into account all relevant matters.
As such, it requires careful consideration and consultation.
This document has been prepared with that in mind: it sets out issues to be considered and possible pathways for the parties and the WRC in this regard. The WRC is anxious that as many directly concerned stakeholders as possible contribute to this debate in order to ensure that whatever model emerges (if any), has been properly constructed and is one that, as much as possible, meets the needs of the broader WRC client-base.
Given that hearings have not taken place since 13 March 2020, the WRC is anxious to develop this as quickly as possible while mindful of the considerations for fair procedures outlined earlier. As such stakeholders are requested to make their submissions by e-mail to david.small@workplacerelations.ie by 5.30pm on 30 April, 2020. The WRC will fully consider any submissions received and will engage further with stakeholders to clarify issues if required.
Mediation
As stated earlier, the WRC’s Mediation Service is currently offering a telephone mediation service in appropriate cases to all parties impacted by the cancellation of hearings or where new complaints are being submitted.
Any model emerging will place a strong emphasis on the benefits of this service and may request parties to actively consider if not engage with the service prior to having suitable matters dealt with by way of written procedure or “virtual” hearing. Indeed, many of the types of complaints most suited to written procedure or “virtual” hearings are those where the facts themselves are not in dispute. As such, it is the view of the WRC that such complaints/disputes are eminently suited to mediation.
The WRC has the resources to meet any such demand for mediation that might arise.
Hearings by way of Written Procedure
Statutory Basis
The statutory basis for the disposal of complaints by way of written procedure is provided for in section 47(1) of the Workplace Relations Act, 2015 (WRA 2015). The list of enactments which are governed by the provisions of Section 47(1) are set out in Schedule 5 of the WRA 2015. Provision to similar effect is made under section 8B of the Unfair Dismissals Act 1977 (UDA 1977), section 79(2A) of the Employment Equality Act 1998 (EEA 1998) and section 25(2A) of the Equal Status Act 2000 (ESA 2000).
It should be noted that there is no statutory provision in the Redundancy Payments Act, 1967, the Industrial Relations Act, 1969 or the Protection of Employees (Employers’ Insolvency) Act 1984 for the disposal of complaints/disputes by way of written procedure only.
Types of Complaints/Disputes Most Suitable for Disposal by way of Written Procedure
The WRC is of the view that the types of complaints/disputes which would be most suitable to investigation by way of written procedure include:
a) Complaints in relation to Pay and Hours of Work (under the Organisation of Working Time Act, 1997 and Payment of Wages Act, 1991);
b) Complaints in relation to Terms and Conditions (under the Terms of Employment (Information) Act, 1994;
c) Complaints under the Minimum Notice & Terms of Employment Act, 1973;
d) Complaints under any statute where an issue of jurisdiction/time limit is involved and only issues of law are to be determined – no dispute on the facts. This would include investigation of issues covered by section 79(3) of the EEA 1998.
Regardless of the statute, the WRC is obliged to conduct the investigation process in accordance with fair procedures and constitutional justice. Where the Adjudication Officer concludes that the preliminary issue disposes of the matter s/he can issue a Decision in that regard, which can be appealed to the Labour Court/Circuit Court as appropriate. In the event the Adjudication Officer decides that the preliminary matter does not bring a conclusion to the complaint, s/he can issue a written ruling to the parties. The substantive matter will be subsequently heard by that Adjudication Officer and the reasons underpinning the conclusions on both the preliminary and substantive issues can be detailed in a single Decision. This will facilitate the parties only having to make a single appeal on the matter and will be quicker for them in the long run.
Complaints/Disputes Less Suited to Disposal by way of Written Procedure
The WRC is of the view that there may be less scope to investigate more complex cases - such as complaints under the Unfair Dismissals Acts, Employment Equality Acts and Protected Disclosures Act by way of written procedure. It should be noted that complaints under these enactments tend to involve material disputes of fact which would require the hearing of evidence from parties/witnesses. It is not prudent or practical for parties to adduce oral evidence or test the evidence of witnesses by way of written procedure.
Some Practical and Procedural Issues
In determining cases suitable for being disposed of in this manner, the WRC will be required to conduct an initial screening of referrals to make a preliminary assessment of the complaints received.
In circumstances where it has been established by the Director General that a complaint is deemed suitable for investigation by written procedure, the WRC will notify the parties of this. The legislative provisions which allow for the investigation of complaints by written procedure (such as Section 47 of WRA 2015, Section 79(2A) of the EEA and section 8B of the UDA 1977) provide that the parties can object to having the complaint dealt with in such a manner. The period within which a party can object is 42 days under the WRA 2015 and UDA 1977 and 28 days under the relevant equality statutes.
This means that the WRC cannot proceed to hear a complaint “on the papers” until the statutory period had expired. In situations where there was a combination of cases the matter cannot proceed until the longer period has elapsed.
Submissions/Documentation
Where parties raise no objection to the matter being dealt with in this way, they will be required to forward written submissions (and all documentation relevant to the complaint/dispute) on request by the WRC within stipulated timeframes, e.g. 14 days.
When the written submissions have been received from the parties the complaint will be assigned to an Adjudication Officer for investigation and decision. The Adjudication Officer will check the submissions on assignment to ensure they are sufficiently comprehensive. (with relevant supporting documentation).
It is incumbent on the parties and their representatives to provide all submissions/documentation well in advance of the hearing as this will facilitate the Adjudication Officer to be prepared in advance and aware of all relevant issues and ensure an efficient and effective investigation of the complaint by way of written procedure.
The WRC will keep this process under review and if it transpires that non-receipt of timely submissions is impacting on the ability of the Adjudication Officer to carry out the investigation in an efficient and effective manner the regular provision of this model will be re-appraised.
Conduct of investigation by Adjudication Officer
The Adjudication Officer will conduct an investigation of the complaint solely on the basis of the written submissions and accompanying documentation.
If, on assignment of the case, the Adjudication Officer considers that s/he does not have sufficient information to decide the complaint based on submissions/information already forwarded by the parties s/he will write to the parties immediately seeking same. When the Adjudication Officer is satisfied that all relevant information has been submitted s/he will draft the written decision in the normal manner which will, in turn, be issued by the WRC to the parties in the manner set out above.
“Virtual” Hearings
Statutory Basis
The WRC is satisfied that it has the power to conduct hearings remotely by way of video-conference where the Director General considers this necessary and appropriate, subject to complying with the requirements of fair procedure and natural justice. This conclusion is based on common law implied powers to offer parties an effective remedy without undue delay under Irish and EU law, and the powers provided for in Section 41(5) of the WRA 2015 read together with Section 11(4) of the Act.
However, this is subject to a limitation where the Adjudication Officer wishes to exercise his/her power to compel the attendance of a witness under section 41(10) of the WRA 2015. In such circumstances, it would be prudent and appropriate to conduct a face-to-face hearing, at least for the purpose of hearing that evidence - this requirement will also apply to requests to compel witnesses to attend a hearing under section 8(13) of the UDA 1977, section 95 of the EEA 1998 and section 34 of the ES Act 2000.
Similar to written procedures, the WRC considers that it would be prudent, at least initially to proceed with remote hearings, on a pilot basis, with the consent of the parties, only in relation to what might be deemed more “straightforward cases” (as identified below).
If this process is successful following conclusion of the pilot period, then consideration can be afforded to extending the initiative to include the more complex cases.
Types of Complaints/Disputes Most Suited to “Virtual” Hearings
The WRC is of the view that the types of complaints/disputes most suited to investigation in this manner – at least initially – are:
a) Trade Disputes under Section 13 of the Industrial Relations Act, 1969,
b) Complaints in relation to Pay and Hours of Work (under the Organisation of Working Time Act, 1997 and Payment of Wages Act, 1991),
c) Complaints in relation to Terms and Conditions (under the Terms of Employment (Information) Act, 1994,
d) Complaints under the Minimum Notice & Terms of Employment Act, 1973.
Types of Complaints/Disputes Less Suited to “Virtual” Hearings
While the WRC considers that it would be possible from a technical perspective to conduct hearings remotely in relation to the more complex complaints such as those under the Unfair Dismissals Acts, Employment Equality Acts and Protected Disclosures Acts, given the nature of these cases and the requirement for oral evidence from witnesses (and cross-examination thereof), the WRC is of the view that a very significant challenge arises in terms of the general conduct of the hearing and adherence to fair procedures.
Practical Issues
The WRC will conduct an initial screening of referrals to make a preliminary assessment of the complaints that are suitable for investigation by way of remote hearing. In circumstances where it has been established by the Director General that a complaint is deemed suitable for investigation by remote hearing, the WRC will notify the parties of the WRC’s intention to proceed in such a manner and obtain the parties’ consent.
Conduct of the Remote/Video Hearing
As with face-to-face hearings, in carrying out its dispute resolution functions, the WRC must comply with the requirements of fair procedure and natural justice. These requirements are not fixed but will depend on all the circumstances of a case and vary from one type of procedure to another.
The WRC is obliged to ensure that its procedures in conducting a remote hearing are as robust as possible without unduly hindering or frustrating the effective exercise of its important functions. Section 41(5)(a) of the WRA 2015 identifies the key elements of fair procedures which apply to the adjudication of disputes and complaints – the Adjudication Officer (‘AO’) must give the parties the opportunity to be heard by the AO, and to present any evidence relevant to the complaint or dispute, and cogent reasons must be provided for the AO’s decision.
As such, it will be necessary for the WRC to establish procedures which will ensure that the conduct of the remote hearing by the AO complies with its obligations to adhere to fair procedures and natural justice. It is envisaged that these procedures will establish the rules to be formulated such as those relating to the muting of microphones when not speaking, to raise hands to indicate an interruption, to leave the video call to seek advice confidentially if represented, that witnesses may not be coached, that parties should ideally not be accompanied in the room unless they have sought permission from the AO. In certain hearings the AO may decide to exclude witnesses from the hearing until such time as their evidence is to be taken.
Protocols and procedures will need to be developed to facilitate temporary exclusion of witnesses if deemed necessary by the AO and how they can be contacted when their involvement is required.
Requirement to Conduct the Hearing in Private
The WRC is required by statute to conduct its hearings in private/otherwise than in public – see section 41(13) of the WRA 2015, section 79(2) of the EEA 1998, section 25(2) of the ESA 2000 and section 8(6) of the UDA 1977. These requirements pose significant challenge for the WRC in circumstances where the hearing is conducted remotely (in some instances multiple locations) which are not provided by the WRC.
Recording of Hearings and Compliance with GDPR Requirements
The WRC does not currently record its hearings or permit any of the parties to do so save in those circumstances where a professional stenographer and/or recognised recording company have been permitted to record proceedings. Any solution developed in terms of remote hearings must comply with the statutory requirements and comply with the General Data Protection Regulations.
Moreover, any process must comply with section 97(2) of the EEA 1998 and section 36(2) of the ESA 2000 which prohibits the disclosure or publication of information acquired in the course of an investigation (save in the circumstances proscribed in those provisions) which may amount to an offence by the person making such a disclosure, in accordance with subsection (4) of those sections respectively.
Submissions/Documentation/Witnesses
It will be necessary for the WRC to implement strict adherence to case management procedures, so that the Adjudication Officer and parties have all documentation in advance of the remote hearing. In this regard, the WRC may require strict adherence to timelines around submissions in advance of such hearings as late submissions will render such hearings impossible on the day.
Indeed, it may well be the case that a complaint may not be considered suitable for progression to hearing under the initiative, unless the necessary submissions and supporting documentation have been filed and exchanged prior to the remote hearing.
In addition, parties will be requested to furnish (well in advance of the remote hearing) a list of witnesses and an overview of the evidence they will adduce. This will assist the AO subsequently to identify those in attendance at the hearing and their role. Any question as to whether or not the information/evidence to be provided by a witness at the hearing is consistent with/goes beyond the scope of the material provided in the overview, will be a matter for decision by the AO.
The WRC is very conscious that the process involved in terms of conducting a hearing by remote means is an expensive service from the perspective of both the time assigned to AOs and the administrative supports required to make it work. Similar to written procedures, the WRC will keep the matter under review and if it transpires that submissions/documentation are not being received in a timely manner and such an outcome is impacting on the efficiency of the service delivery model, the WRC may review the delivery of hearings under this mechanism.
IT Solutions
The WRC is aware of a range of IT platforms which may be utilised to conduct remote video hearings (and some are perceived to have advantages over others). At present, the WRC is reviewing a number of platforms as a means of conducting the remote hearing.
Whatever platform is chosen it is likely that there will be a minimum remote device specification and broadband speed required of all parties.
In light of the specific restrictions imposed under the current public health guidelines, it is proposed that the remote hearing will be conducted by the AO from a remote location via the recommended IT solution. However, subject to an appropriate easing of these restrictions it may be possible for the remote hearing to be conducted via the teleconferencing facilities available in the WRC’s designated offices.
Publication of Submissions
The WRC may publish all submissions received under this consultation process. However, should you submit information that you consider commercially sensitive, please identify that information in your submission and give reasons for considering it commercially sensitive. The WRC will consult with you regarding such information before making any decision to publish.
Similarly, attention is drawn to the fact that information provided to the WRC may be disclosed in response to a request under the Freedom of Information Act 2014. Therefore, should it be considered that any information provided by a respondent is commercially sensitive, please identify same, and specify the reason for its sensitivity. The WRC will consult with interested parties regarding information identified by them as sensitive before making a decision on any Freedom of Information request.