Impact of Supreme Court Judgement on operation of the WRC

Business continues, but definitely not as usual, for the Workplace Relations Commission following the Supreme Court’s decision regarding the constitutionality of the Workplace Relations Commission (Zalewski -v- Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC24).

Last week, the WRC published some immediate procedural changes to its day-to-day operations, to enable the adjudication service to continue to operate pending some procedural amendments to the relevant legislation.

In brief summary, the Supreme Court held that Adjudication Officers and members of the Labour Court are deemed to administer justice (in a limited way) under the Irish Constitution. As a direct result of that finding, some elements of the legislation and procedures of the WRC are incompatible with the Constitution.

Employers awaiting hearing dates from the WRC will be impacted by these changes in the following ways:

Public hearings

The WRC must now operate hearings in public (except for Industrial Relations Acts based complaints). All cases are currently heard by way of remote hearing due to the Covid 19 pandemic. It is unclear yet how scheduling of future cases will be published to facilitate any requests from the public and the media to join a remote hearing.

Consequent to a requirement for a public hearing, the previous practice of the WRC to anonymise decisions published on its website will be abolished. This means that the names of all parties will be clearly identified in decisions published on the WRC website.

Serious and direct conflict of evidence

Except in complaints under the Industrial Relations Act, an Adjudication Officer may determine either in advance, or during the course of a hearing, that there is a serious and direct conflict of evidence between the parties. The Adjudication Officer will then adjourn the hearing of the case. The purpose of the adjournment is to await the emergency amending legislation promised by the Minister for Business, Employment and Retail, Damien English TD, to provide statutory powers to Adjudication Officers to enable them to administer an oath or affirmation and, to provide for a punishment for the giving of false evidence.

By way of comment, this operational change will likely result in an increase to adjournment applications both prior to and during a hearing. It is unclear how long it will take for the amending legislation to be enacted. It is hoped, given that there is no prospect of “in person” hearings for the foreseeable future, that the Oireachtas will be mindful of alternative ways in which to permit oath-taking through videoconference facilities. Such a step would mirror the new Rules of the Superior Courts, permitting affidavits to be sworn remotely through videoconferencing facilities for the first time.

Conclusion

All cases concluded before 6th April 2021 (and awaiting decisions) will be anonymised when published on the WRC website.

All cases currently awaiting hearing dates before the WRC will proceed to be scheduled for hearing in the usual way, subject to any applications that may be made. Parties are reminded of the availability of WRC mediation as an option to confidentially resolve complaints.

All Industrial Relations Acts disputes will remain listed as private hearings (whether in hearing or in a virtual setting).

We will continue to keep employers updated as the legislation is enacted to reflect the operational changes required by the Supreme Court Judgement.