The WRC is now implementing a number of procedural changes after the court found two aspects of legislation and the procedures of the WRC were incompatible with the Irish Constitution. The court was ruling in a case brought by shopworker Tomasz Zalewski against the WRC questioning aspects of the constitutionality of the Workplace Relations Act 2015.
The WRC must now operate on the basis that all hearings, except where the investigation or hearing does not amount to the administration of justice – such as a dispute under the Industrial Relations legislation or mediation – are to be open to the public.
Members of the public, including members of the media, will be permitted to attend hearings under the various employment rights statutes, subject to technical arrangements being put in place, although due to Covid-19 related health and safety measures, the WRC is currently only permitted to hold remote hearings.
Employment law expert Ciara Ruane of Pinsent Masons, the law firm behind Out-Law, said parties who had already submitted complaints to the WRC for adjudication on the basis that hearings would be heard in private should be aware the provision for a private hearing no longer applied.
The ruling (3 page / 93.9KB PDF) also means that decisions will be published including the names of the parties, whereas previously names of parties were anonymised.
Where a complaint had its final hearing on or before 6 April 2021, the determination of the adjudication officer will be anonymised, or anonymised at the adjudication officer’s discretion if it relates to an equality matter, until new legislation comes into force.
“With WRC hearings operating in public, which means that media may be able to attend, and parties being named in the decision published on the website, this is likely to impact on the way parties proceed with these matters. It will be interesting to see if there will be an increase in parties engaging in mediation, as mediation proceedings will remain in private,” Ruane said.
Employment law expert Jason McMenamin of Pinsent Masons said: “The case has huge implications for future employment law cases before the WRC. Employers should take note of the current procedural changes and be particularly conscious that up until new legislation is introduced the names of parties will not be anonymised.”
The Supreme Court also 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. It said 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, was inconsistent with the Constitution.
As a result, except where the investigation or hearing does not amount to the administration of justice – for example 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 the officer, they will adjourn the hearing to await amendments to the Workplace Relations Act 2015. These will give adjudication officers the power to administer an oath or affirmation, and provide for a punishment for the giving of false evidence.
The WRC said unless a postponement was granted in advance, all scheduled hearings would begin as usual and continue to a conclusion, unless an adjudication officer decides that it is necessary that an oath or affirmation be administered.
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.