- June 3, 2021
- Posted by: granitewordpress
- Category: News
Following the judgment of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General  IESC 24 on 6 April 2021, a number of procedural changes are required to be made to the operation of the Workplace Relations Commission (WRC) in employment rights and equality complaints.
In this article Michelle Cronin, Solicitor, Comyn Kelleher Tobin and Emily Sexton, Partner, Comyn Kelleher Tobin give an overview of the background to the case and outline the key changes.
Judicial review proceedings were brought on behalf of the Applicant in 2017 in a context where the Applicant was pursuing a claim for unfair dismissal. The argument made by the Applicant was that;
- the provisions of the Workplace Relations Act 2015 (which established the WRC) breached the Applicants right to fair procedures and constitutional justice,
- were in contravention of Articles 34, 37, 40.3.1 and 40.3.2 of the Constitution, and
- were incompatible with the European Convention of Human Rights.
Of significance is a further argument made on behalf of the Applicant which was that the Applicant is entitled pursuant to the Constitution to pursue his claim before the courts as opposed to being limited to seeking recourse through the WRC. This argument placed a question mark over the WRC’s powers to adjudicate on disputes between employers and employees.
In summary, by way of majority decision, the Supreme Court held that Adjudication Officers and members of the Labour Court are deemed to administer justice, albeit in a limited way but that WRC’s power to adjudicate disputes ‘does not offend the constitution’. As a result of that finding, some elements of the legislation and procedures of the WRC are inconsistent with Article 37 of the Constitution.
Changes as a result of the Supreme Court judgment
1. Public Hearings
The Supreme Court held that it was incompatible with the administration of justice for there to be a blanket ban on hearings in public before the 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.
The WRC must now ensure that all hearings (except for Industrial Relations Act based complaints) are open to the public. Parties who had submitted employment rights or equality complaints to the WRC, prior to the Supreme Court judgment, should note that the provision for a private hearing no longer applies and that as a consequence, decisions will be published including the names of the parties.
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.
2. Cases where there is a serious and direct conflict of evidence.
The Supreme Court held that in cases where there is a serious and direct conflict of evidence, the administration of the oath and the possibility of punishment for giving false evidence are an important part of ensuring that justice is served. The Court found 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 by an Adjudication Officer in the Workplace Relations Commission under Part 4 of the Workplace Relations Act 2015 or section 8 of the Unfair Dismissals Act 1977, as amended, was incompatible with the Constitution.
Where an Adjudication Officer may decide that there is a serious and direct conflict of evidence between the parties in employment rights or equality complaints, he or she must now 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.
It is likely that this operational change will result in an increase in adjournment applications both prior to and during a hearing. Minister for Business, Employment and Retail, Damien English TD, has not yet confirmed how long it is likely to take for the amending legislation to be enacted, but has indicated that emergency legislation is currently being drafted. In view of COVID-19 restrictions and given the new additions to the Rules of the Superior Courts which permit affidavits to be sworn remotely through videoconferencing software, it is hoped that the Oireachtas will consider alternative ways in which to permit oath-taking through videoconference software.
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 must now proceed in public.
Where a complaint has had its final hearing before or on 6th April 2021, the decision 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, following the Supreme Court judgment in relation to the constitutional requirement that justice be administered in public, the names of the parties will not be anonymised save in circumstances to be defined. This may have a bearing on how employers and employees choose to approach matters before the WRC.
Since the establishment of the WRC in 2015, a complainant could avail of the adjudication services relatively quickly and inexpensively. The process up to now has not been overly complicated. It remains to be seen whether WRC adjudications will become more costly and/or more drawn out as a result of the additional formality and procedural changes. In addition, the fact that hearings will now be dealt with in public and the publication of parties’ identity, to include possible reputational consequences of a public hearing and/or media reports, is a factor that may dissuade both employees and employers from proceeding to hearing and may encourage settlement, even in cases which an employer might otherwise contest.
If you have any questions relating to this article, please contact Michelle Cronin, Solicitor, CKT or Emily Sexton, Partner, CKT.