Following delivery of the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General  IESC 24 on 6 April 2021, and the consequential orders made on foot thereof on 15 April 2021, a number of procedural 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 the 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.
Changes as a result of the Supreme Court judgment
The WRC has now carefully considered the judgments of the Supreme Court and order of 15 April, and parties should note the adjustments to procedures required.
Please note 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 - and 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 all cases submitted for adjudication and will continue to be entirely confidential; mediation is unaffected by the judgment.
Hearings in Public
The WRC must now operate on the basis that all hearings, save where the investigation or hearing does not amount to the administration of justice, are to be open to the public. 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 the position until new legislation comes into force.
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 email@example.com 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 at firstname.lastname@example.org indicating the names of the complainant and the respondent and the Adj number provided in the correspondence.
Arrangements around Public Hearing for Employment and Equality Rights cases
In the ordinary course, members of the public, including members of the media, will be permitted to attend hearings under the various employment and equality rights statutes, subject to technical arrangements being put in place. However, due to the current Covid-19 related health and safety measures, the WRC is currently only permitted to hold remote hearings.
In order to render remote hearings accessible to the public, in this transition period, a person may submit a request to attend a particular hearing by email to email@example.com 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 to one or two 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.
Cases where there is a serious and direct conflict of Evidence
Save where the investigation or hearing does not amount to the administration of justice (ie 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, in order 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 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 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, direct conflict of evidence arises.
Parties may utilise the hearing provided to case manage the complaint(s) to identify areas of contention and/or agreement which will be of assistance to all parties should the matter require a further hearing.
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.
In response to the Supreme Court judgment, it will be a matter for the Oireachtas to decide on the precise framing of the legislative powers required.
As amending legislation will be required, it will be necessary for the WRC to update its procedures in line with the legislation and policy when this is enacted.
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. 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 at firstname.lastname@example.org indicating the names of the complainant and the respondent and the Adj number provided in the correspondence.
Cases concluded before 6 April 2021.
Where a complaint has had its final hearing before or on 6 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.
Communications with the WRC
Where a hearing has already been scheduled any further correspondence or submissions required should be emailed to email@example.com
Industrial Relations Disputes
All WRC hearings convened under the Industrial Relations Act 1969, 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.
Please note that such IR disputes should not be confused with e.g., complaints in relation to Sectoral Employment Orders brought under the Industrial Relations (Amendment) Act 2015, which come within the requirements as set out by the Supreme Court and are covered by the changes set out above.
What does it mean to say that Adjudication Officers are exercising limited functions and powers of a judicial nature within the meaning of Article 37 of the Constitution?
O’Donnell J delivering the judgment for the majority explained as follows:
“The exercise of jurisdiction captured by Article 37 is the administration of justice. The Article merely permits it to be carried out by a body other than a court and by a person other than a judge in a context that is non-criminal and limited. […] the function being performed and the power being exercised must comply with the fundamental components of independence, impartiality, dispassionate application of the law, openness, and, above all, fairness, which are understood to be the essence of the administration of justice.”