- 10 August 2021
- Posted by: Siobhán Lafferty
- Categories: Employment and Regulatory, Employment Law
Changes to the Workplace Relations Commission
The Supreme Court in Zalewski v Adjudication Officer and Workplace Relations Commission (the “WRC”), Ireland and the Attorney General unanimously agreed that the Workplace Relations Commission is a body which in respect of certain claims is administering justice under the Constitution. As a result, this has led to the WRC changing its procedures going forward, resulting in a different landscape for both employers and employees who are before the WRC to consider.
The Zalewski case brought a challenge over the constitutionality of the WRC as a whole. Whilst the Supreme Court found that the WRC itself was not unconstitutional, it also found that when adjudicating on most employment and equality claims the WRC is administering justice. This means that the WRC is exercising limited powers and judicial function under section 37 of the Constitution. In turn, the case considered aspects of the procedures before the WRC, in particular:
1. The fact that WRC hearings are heard in private; and
2. The absence of administering any oath to those giving evidence.
The Supreme Court’s view was that the blanket ban on hearings taking place in public was not in line with administering justice. It therefore declared sections 41(13) of the Workplace Relations Act 2015 and section 8(6) of the Unfair Dismissals Act 1977 (as amended) to be unconstitutional.
Similarly, the fact that those giving evidence before the WRC are not under oath and there is no chance of any punishment for giving false evidence was also found to be contrary to the administration of justice. It found that where there is a direct conflict of evidence then it is important that a witness has had the oath administered and knows there is a punishment for giving false evidence to the body. As a result, the Supreme 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) was inconsistent with the Constitution.
Impact of the Decision
The result of this decision is that the WRC has had to change its procedures (and the legislation which its procedures are based upon) to make the WRC compliant with its role of administering justice under the Constitution. These changes do not apply to cases which are being dealt with under section 13 of the Industrial Relations Act 1969.
Firstly, hearings will now be considered in public and that will be the default position. An application could be made or the Adjudication Officer could decide to have the hearing in private if there were particular reasons but this will no longer be the norm. Further this means that not only the hearing itself will be in public but so will the decision. Previously WRC decisions were anonymised (other than where the Adjudication Officer chose not to in equality cases).
This particular change creates new issues for both complainants and respondents when brought before the WRC. Will an employer want to face a public hearing where all of the issues are ventilated in public? Will a former employee want it known that they are bringing a claim against a previous employer? These are issues which neither party really had to consider at this stage and it will be interesting to see if this impacts claims moving forward.
Further, oaths will need to be administered for witnesses giving evidence at WRC hearings. This has caused a particular issue in cases where hearings were part-heard. In those cases, if the Adjudication Officer considers that there is a serious and direct conflict of evidence, then the case has to start afresh before another Adjudicator who will administer the oath. It seems likely that in most cases relating to unfair dismissal or claims under the Employment Equality Acts that there would be a serious and direct conflict of evidence, thus potentially causing further delays on claims.
The WRC has reminded parties that cross-examination is already permitted in cases before it, and there are no changes on that front.
The Supreme Court judgment in Zalewski has led to changes to the WRC procedures, which will mean changes to the considerations that those before the body will have to consider. This is particularly the case now that hearings will be in public and decisions will no longer be anonymised – therefore giving parties some food for thought before ploughing ahead with taking a claim before the WRC.
For further information on this topic, please contact Siobhán Lafferty at email@example.com