Key changes to WRC claims following Supreme Court ruling

The Supreme Court recently delivered an important judgment in the case of Zalewski v Workplace Relations Commission & Others [2020] IESC 24 on April 6th, 2021. While the Supreme Court ultimately rejected the challenge to the Workplace Relations Commissions’ (WRC) constitutionality, the decision will lead to some key changes in the management of WRC claims.

For a review of the Supreme Court decision, see our recent case report here. For the purposes of this article, we will concentrate on two aspects of WRC procedures that the Supreme Court found incompatible with the Constitution:

• The blanket ban on public hearings: The Supreme Court ruled that the blanket prohibition on public hearings before WRC Adjudication Officers was unconstitutional.
• Evidence not given under oath: The legislation regulating the WRC does not provide for the administration of an oath or any potential punishment for the provision of false evidence. The Supreme Court deemed that the WRC’s lack of authority to require evidence to be given under oath was unconstitutional.

How this ruling will impact WRC hearings

It’s important to note that the Supreme Court ruling does not impact WRC claims that have already concluded. Claims that are currently working their way through the WRC system may be adjourned until the amending legislation is in effect but this decision will be at the discretion of the parties to any live litigation.

The Workplace Relations Act 2015 will require amendments to incorporate the Supreme Court’s ruling. Once the amending legislation is in place, WRC hearings will be held in public and Adjudication Officers will have authority to take evidence on oath.

Taking of evidence on oath

The WRC’s authority to require evidence to be given under oath should be useful in disputes around evidence. If there’s a direct and serious conflict of evidence between the parties to a complaint, or such a conflict arises in the course of a hearing, an Adjudication Officer may require a witness to provide evidence under oath. This development opens up the prospect of criminal liability for any witness who provides false testimony in WRC proceedings.

WRC hearings to be held in public

To date, WRC hearings have been heard in private with the names of the parties’ anonymised in the Adjudication Officer’s decision, save for in certain limited circumstances. The Supreme Court’s ruling means members of the public and the media will be permitted to attend WRC hearings once the amending legislation comes into effect.

Public listing of hearings

Although current guidance from the WRC does not expressly state the listing of hearings, we anticipate that parties to a hearing will be named on the WRC website in its list of upcoming hearings. At present, the WRC is only permitted to hold remote hearings due to current restrictions.

If a member of the public or media wants access to a remote hearing, they should submit an email to pru@workplacerelations.ie requesting to attend such hearing to the WRC. The WRC will share WebEx link with those requesting to attend. However, in circumstances where there are numerous attendees, posing a potential impact on the quality of the video and its connection, the Adjudication Officer may limit the external attendee list and regard must be had for those whose attendance is required.

Parties’ named in WRC list of upcoming hearings

With the requirement for hearings to be held in public, it’s anticipated that parties’ names will now appear on the WRC list of upcoming hearings. This schedule will be available to the public on the WRC website and will be updated on a weekly basis. The listing is likely to follow the format of the Labour Court list, outlining the parties’ names and the specific legislation under which the claim is being heard.

Parties no longer anonymised in WRC decisions

As detailed above, while the hearings will be required to be held in ‘public’, subsequently, decisions will be published with the names of the parties included. Where a complaint has had its final hearing before or on April 6th, 2021, the determination will still be anonymised. However, if the final hearing takes place after April 6th, 2021, the party names will not be anonymised.

Right to cross examine

The Supreme Court criticised the lack of an express provision in the 2015 legislation for a right to cross-examine but stopped short of ruling this aspect of the legislation unconstitutional. The right to cross-examine has always been exercised by the WRC, and this position will remain unchanged.

Supreme Court ruling will not apply in certain matters

The changes discussed above apply where the hearing involves the ‘administration of justice’, which is the case in the majority of employment and equality rights complaints. However, the following matters will not be impacted by the decision:

• Industrial relations disputes pursuant to Section 13 of the Industrial Relations Act remain to be heard in private. Complaints involving Sectoral Employment Orders taken pursuant to the Industrial Relations (Amendment) Act 2015, fall within the requirements of the Supreme Court ruling.
• The WRC’s mediation service will remain unchanged by the procedural changes, this remains to be a confidential and optional service.
• Section 39(17) of the Redundancy Payments Act 1967, currently gives Adjudication Officers power to administer an oath in hearings involving redundancy complaints. Such hearings will proceed in public.

Need help with a WRC claim?

If you have a case pending before the WRC or have any questions in relation to the above, call our 24/7 helpline for instant advice. To speak to an expert now, call 0818 923 923.