This web-notice first issued on 16.04.2021. Please note it was updated on 21.05.2021 with further detail in relation to part-heard cases, cases where there is a direct and serious conflict of evidence, GDPR and Industrial Relations disputes. It was further updated on 28.07.2021 to reflect new legislation, the Workplace Relations (Miscellaneous Provisions) Act 2021 and Criminal Law (Perjury and related offences) Act 2021. A further amendment was made on 18.11.22 to reflect current practice on Hearings in section 4 below.
1. Overview of Supreme Court judgment
Following delivery of the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021, and the consequential orders made on foot thereof on 15 April 2021, a number of changes are required to procedures at the WRC.
As a result of the judgment, in adjudicating upon most employment and equality rights claims, Adjudication Officers and members of the Labour Court are deemed to be administering justice - that is, exercising limited functions and powers of a judicial nature within the meaning of Article 37 of the Constitution. It was the unanimous decision of the Supreme Court that in the context of the Zalewski case, the Adjudication Officer was engaged in the administration of justice.
While the Supreme Court rejected many of the constitutional challenges to the 2015 Act, and the Unfair Dismissals Act 1977, as amended, it did determine that in the context of the administration of justice, two aspects of the legislation and procedures of the WRC, were incompatible with the Constitution.
Firstly, the Court held that it was incompatible with the administration of justice for there to be a blanket prohibition on hearings in public before an Adjudication Officer and it declared that sections 41(13) of the Workplace Relations Act 2015 and section 8(6) of the Unfair Dismissals Act 1977, as amended, are unconstitutional.
Secondly, it held that the administration of the oath and the possibility of punishment for giving false evidence are an important part of ensuring that justice is done, in cases where there is serious and direct conflict of evidence. Therefore, the Court declared that the absence of any provision for the administration of an oath, or any possibility of punishment for the giving of false evidence in the hearing of claims heard under Part 4 of the Workplace Relations Act 2015 or section 8 of the Unfair Dismissals Act 1977, as amended, is inconsistent with the Constitution.
2. Procedural Changes
The changes outlined below apply where Adjudication Officers are administering justice – that is exercising limited functions and powers of a judicial nature within the meaning of Article 37 of the Constitution. However, these changes do not apply to disputes under section 13 Industrial Relations Act 1969, which are non-justiciable and will continue to be heard in private.
Equally, WRC mediation remains an option in most cases submitted for adjudication and will continue to be entirely confidential. Mediation is unaffected by the judgment. Parties can avail of mediation following notice that a case is before the Commission but not after a hearing date is scheduled.
3. Hearings in Public
Employment and Equality Rights Complaints
The WRC must now operate on the basis that all hearings are to be open to the public, other than where the investigation or hearing does not amount to the administration of justice.
As parties who had submitted complaints to the WRC for adjudication, prior to the Supreme Court judgment, would have done so on the basis of these hearings being heard in private, it is important that parties are aware that in light of the judgment the provision for a private hearing no longer applies and also, as a consequence, that decisions will be published including the names of the parties – in other words the names of the parties will no longer be anonymised. This is unless an application is made and granted, or an Adjudication Officer decides of their own motion that there are ‘special circumstances’ which warrant a private hearing and/or anonymised decision.
In this regard, a complainant may choose not to proceed with a complaint, or the parties may settle the complaint or seek to have it mediated by the WRC without a need for a hearing in public.
In such circumstances,
- Where a complainant wishes to withdraw a complaint, or where parties have settled the matter, they should notify the WRC at pru@workplacerelations.ie indicating the names of the complainant and the respondent and the Adj number provided with the correspondence.
- Parties who wish to have the complaint mediated should notify the WRC as soon as possible before a hearing date is scheduled at mediation.response@workplacerelations.ie indicating the names of the complainant and the respondent and the Adj number provided in the correspondence.
Industrial Relations Disputes
All WRC hearings convened under the Industrial Relations Act 1969[1], whether in a physical in-person hearing room or in a virtual hearing, are private sittings. Attendance is confined to the parties to the hearing, their representatives and other essential attendees. Members of the public, including members of the media, are therefore not permitted to attend hearings under the Industrial Relations Acts.
Where the facts of an industrial relations dispute are separate and independent to other complaints submitted for adjudication under other legislation, they will be heard in private or commenced in private before the Adjudication Officer proceeds to hear the other complaints in public.
However, where the facts are overlapping and interconnected in complaints and cannot be dealt with separately over the course of the hearing, it will be a matter for the Adjudication Officer to determine on the facts of the case how to proceed in these instances.
Please note mediation is not available for cases under Section 13 of the Industrial Relations Act 1969.
1 Such IR disputes should not be confused with complaints in relation to Sectoral Employment Orders brought under the Industrial Relations (Amendment) Act 2015, which are captured by the requirement to carry out the administration of justice in public element of the judgment of the Supreme Court.
4. Public Hearing Arrangements
Members of the public, including members of the media, may attend hearings under the various employment and equality rights statutes, subject to capacity. Since Covid-related restrictions eased, the majority of WRC hearings are being held in person although some are still listed remotely depending on the circumstances of the individual case and resources.
For in person, the public may attend subject to capacity in the hearing room. In order to access remote hearings, a person may submit a request to attend a particular hearing by email to pru@workplacerelations.ie and the WRC will then share the WebEx link with members of the public, or media. However, out of fairness to the parties, if the numbers wishing to attend is significant and has an impact on the quality of the IT connection, then Adjudication Officers may decide to limit the number of external participants and must in any event mute observers for the duration of the hearing. On the day of the hearing, the Adjudication Officer will decide on who to admit into the virtual room.
It should be noted that since the ruling in April 2021 the WRC publishes a weekly list of hearings with case reference numbers to facilitate public access.
5. Cross-examinationi
Cross-examination has always been available before the WRC, as reflected in the 2015 Guidance Note for a WRC hearing. This is also reflected in new procedural guidelines for witnesses issued on 28 July 2021.
6. Cases part-heard as of 7 April 2021
Where a case commenced prior to 7 April 2021 which has not concluded, and where, inevitably, evidence was heard without an oath or affirmation being administered, in considering whether the evidence needs to be reheard afresh on oath the Adjudication Officer will now have to consider whether a serious and direct conflict of evidence arises in the case.
If the Adjudication Officer decides that there is such serious and direct conflict of evidence, then the case may have to commence afresh before a different Adjudication Officer who will administer the oath or affirmation once the legislation is in place.
Parties will have the opportunity to make submissions before any determination is made on this question. It is intended that part-heard cases will be scheduled for hearing to determine whether there is a serious and direct conflict of evidence. This will be done by the Adjudication Officer who already part-heard the matter and they will decide whether the case can be completed without an oath or affirmation or whether it must start afresh.
Please note that cases part-heard cannot be referred for mediation.
7. Cases concluded before 7 April 2021
Where a complaint has had its final hearing before 7 April, the determination of the Adjudication Officer will be anonymised under section 41(14) Workplace Relations Act 2015 or at the Adjudication Officer’s discretion if it relates to an equality matter. For cases heard after that date, in light of the Supreme Court ruling in relation to the constitutional requirement that justice be administered in public, the names of the parties will not be anonymised.
8. Redundancy Cases
The WRC currently has the power under section 39(17) of the Redundancy Payments Acts 1967 to administer an oath in redundancy complaint hearings. Therefore, such cases may proceed, but will do so in public. However, if these cases were part heard before 7 April 2021, then the same approach to part-heard cases above will apply, and the evidence may need to be heard afresh, on oath or affirmation.
Please note mediation is not available for cases under the Redundancy Payments Acts 1967.
9. Legislative Response
In response to the Supreme Court judgment, it is a matter for the Oireachtas to decide on the precise framing of the legislative powers required. Legislation has now been enacted in the Workplace Relations (Miscellaneous Provisions) Act 2021 and the Criminal Justice (Perjury and Related Offences) Act 2021.
10. Mediation
In the meantime, the WRC would also request that all parties give due consideration to the opportunity offered by the WRC Mediation Service as a possible avenue to resolve an individual matter in dispute. This should be done as early as possible in the process. Apart from obviating the need for a hearing, mediation can lead to a resolution of the matter in a confidential, mutually agreed fashion. Parties should contact the WRC if they wish to participate in mediation, which will currently be by phone or video call.
Parties who wish to have the complaint mediated should notify the WRC prior to receiving a hearing date at mediation.response@workplacerelations.ie indicating the names of the complainant and the respondent and the Adj number provided in the correspondence. Please note that Mediation will be offered subject to availability.
11. Communications with the WRC
Where a hearing has already been scheduled any further correspondence or submissions required should be emailed to pru@workplacerelations.ie
12. GDPR and Public Hearings
Article 6(1)(c) of the General Data Protection Regulation 2016/679 provides a legal basis for the processing and retaining of personal data involved in remote hearings now run in public, in compliance with the Zalewski judgment, and section 31 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 empowering the WRC to hold remote hearings.
See here for the WRC’s updated data protection policy. Parties and members of the public attending are reminded that they must not photograph, record or broadcast WRC hearings.
i The Following paragraph was removed on 28 July 2021 to reflect the new legislation commenced on 29 July 2021.
5. Adjourning hearings where there is a serious and direct conflict of evidence
Save where the investigation or hearing does not amount to the administration of justice (i.e. in industrial relations disputes), where an Adjudication Officer determines that there is a serious and direct conflict of evidence between the parties to a complaint before him/her, or one emerges in the course of the hearing, the Adjudication Officer will adjourn the hearing to await the amendment of the Workplace Relations Act 2015 and related enactments to grant to Adjudication Officers the power to administer an oath or affirmation, and provide for a punishment for the giving of false evidence.
However, to minimise delay to the parties, unless a postponement is granted in advance, all scheduled hearings will commence in the normal manner and proceed to conclusion, subject to the requirement that it will be necessary to adjourn the hearing, where an Adjudication Officer concludes that it is necessary that an oath or affirmation be administered, as outlined above. Following the judgment, the fact that the parties indicate a view that there is no requirement for an oath to be administered is not determinative of the question. Adjudication Officers will determine whether they consider the oath to be necessary.
Cross-examination has always been available before the WRC, as reflected in the 2015 Guidance Note for a WRC hearing. This will also be reflected in new procedural guidelines which will issue in due course following enactment of legislation.
As above, unless a postponement is granted in advance, all currently scheduled hearings will commence in the normal manner and proceed to conclusion, subject to the requirement that it will be necessary to adjourn, where a serious and direct conflict of evidence arises.
Where parties believe that it is likely that there is a serious and direct conflict of evidence in a case, they can request that the Adjudication Officer address this as a preliminary issue at the adjudication hearing. This is in recognition that there will be cases in which there is clearly a serious and direct conflict of evidence and in order to save parties’ costs. It is also possible for parties to liaise between themselves in order to ascertain whether they agree on the question of whether there is a serious and direct conflict of evidence.
Parties are encouraged to utilise the hearing provided to case manage the complaint(s) to identify areas of contention and/or agreement. This will be of assistance to all parties should the matter require a further hearing.
This approach, in place since the Supreme Court handed down judgment in April 2021, has been welcomed by parties as representing a fair and reasonable response, and is preferable to cancelling all affected hearings. In this regard, it should be borne in mind that in some part-heard cases the only serious and material conflict may be in relation to an interpretation of the law or the application of the law rather than factual evidence. Such cases may be able to proceed as normal.]