Changes to hearing procedures as a result of the Supreme Court Ruling on the constitutionality of the Workplace Relations Commission

The judgment of the Supreme Court in the case of  Zalewski v An Adjudication Officer, the Workplace Relations Commission & others [2021] IESC 24, which was delivered on 6 April 2021, has triggered significant changes to the procedures for hearings before the Workplace Relations Commission (”WRC”). 

In the judgment delivered by Mr Justice O’Donnell, the Supreme Court, in considering an appeal from the High Court, found that the WRC’s power to adjudicate workplace disputes does not “offend the Constitution”. It was concluded that the WRC exercises limited judicial powers and functions and is therefore covered by Article 37 of the Constitution. However, the Supreme Court held that (a) the requirement that hearings be held in private and (b) the absence of any provision for taking evidence on oath were inconsistent with the Constitution. 

This ruling has led the WRC to issue a Notice in relation to changes to its procedures. Legislation is also currently being drafted to enable the WRC to continue to discharge its functions in accordance with the Constitution.

Background

Mr Zalewski lodged complaints with the WRC claiming unfair dismissal under the Unfair Dismissals Act 1977 – 2015 and for payment in lieu of notice under the Payment of Wages Act 1991 after having been dismissed by his former employer, Buywise Discount Store Ltd. The parties attended the WRC for hearing at which the Adjudication Office accepted written submissions and documentation. The matter was adjourned, however, in order to allow for the attendance of a witness for the employer. A further hearing date was subsequently scheduled. However, when the parties attended the rescheduled hearing, they were informed that the hearing had been scheduled in error and that the Adjudication Officer had already issued a determination, dismissing Mr Zalewski’s claims.

Mr Zalewski commenced judicial review proceedings, seeking an order quashing the decision of the Adjudication Officer, which was conceded by the State respondents.  He also sought a wide range of declaratory reliefs including that the Workplace Relations Act 2015 (the “2015 Act”) was repugnant to the Constitution. In this regard, Mr Zalewski raised the following four complaints:

1. There was no requirement that adjudication officers or members of the Labour Court have any legal qualifications, training, or experience.
2. There was no provision for an adjudication officer to administer an oath or affirmation. Consequently, there was no criminal sanction for a witness who gave false evidence before an adjudication officer.
3. There was no express provision made for the cross-examination of witnesses.
4. The proceedings before an adjudication officer were held otherwise than in public.

High Court Judgment

In the High Court, Mr Zalewski argued that the WRC was unconstitutional for two reasons. Firstly, he argued that the WRC carries out the administration of justice in breach of the constitutional rule, under Article 34 of the Constitution, that (with limited exceptions) only the courts may administer justice. Secondly, he argued that several of the statutory procedures of the WRC were so deficient that they fail to vindicate his personal constitutional rights, as set out above. The High Court rejected both arguments and upheld the constitutionality of the WRC. 

Supreme Court Judgment 

The Supreme Court overturned the High Court decision and held that the WRC, and the Labour Court on appeal, carry out the administration of justice. However, the Supreme Court found that the WRC exercises limited powers and functions of a judicial nature, which is covered by Article 37 of the Constitution and so does not offend the Constitution.

However, in respect of the complaints raised by Mr Zalewski about the constitutionality of the procedure under the 2015 Act, the Supreme Court held:

1. The requirement under section 41(13) of the 2015 Act that hearings are conducted in private is repugnant to the Constitution as it removes the possibility, in appropriate cases, of a public hearing. The Court explained that the effect of this finding is that proceedings may, but not must, be heard in public.
2. The absence, in the 2015 Act, of a provision for the administration of an oath, or any possibility of punishment for giving false evidence, is inconsistent with the Constitution. 

Practical Effect for WRC Hearings

The WRC issued a Notice on 16 April 2021 setting out certain procedural changes in light of this Supreme Court judgment. The key changes are as follows:

(1) Public Hearings: 

• Pending the enactment of new legislation, the WRC will operate on the basis that all hearings, other than where the investigation or hearing does not amount to the administration of justice (i.e. complaints under the Industrial Relations Act 1969, see further below), will be conducted in public. This change applies even to those complaints submitted prior to 6 April 2021 (being the date of the Supreme Court judgment). Accordingly, members of the public and media may attend hearings and the parties will be named when the determinations are published.

• Determination in respect of complaints which had their final hearing before or on 6 April 2021, will be anonymised under section 41(1) of the Workplace Relations Act 2015 or at the Adjudication Officer’s discretion if it relates to an equality matter. 

• At present, due to Covid-19 public health measures, all hearings in the WRC are being conducted remotely.  In light of this, members of the public or media wishing to attend a hearing may submit a request by email to the WRC, and the WRC will share the WebEx link. However, if the Adjudication Officer decides that the number of attendees is “significant” and may impact the IT connection, the WRC Notice indicates that the Adjudication Officer may decide to limit the number of external participants.
  

(2) Conflicts of Evidence – Administering the Oath

• Except for cases where an investigation or hearing does not amount to the administration of justice (i.e. industrial relations disputes under the Industrial Relations Act 1969), if an Adjudication Officer decides that there is a serious and direct conflict of evidence between parties, the hearing will be adjourned until the appropriate legislation is amended and/or enacted to empower Adjudication Officers to administer an oath or affirmation and to provide for a punishment for the giving of false evidence.

• The WRC Notice states that “unless a postponement is granted in advance, all scheduled hearings will commence in the normal manner and proceed to conclusion subject to the requirement that it will be necessary to adjourn where an adjudication officer concludes that it is necessary that an oath or affirmation be administered.”

• The fact that the parties may express a view that there is no requirement for an oath to be administered is not determinative of the issue. The decision will rest with the Adjudication Officer as to whether he/she considers the oath to be necessary.

• As the WRC currently has the power under the Redundancy Payments Acts 1967 to administer an oath in redundancy complaint hearings, such cases may proceed, but will do so in public.

(3) Industrial Relations Disputes

• The new rules as outlined above do not apply to trade dispute complaints brought under section 13 of the Industrial Relation Acts 1969 which will continue to be conducted in private. However, complaints in relation to Sectoral Employment Orders brought under the Industrial Relations (Amendment) Act 2015 are covered by the new requirements.

The WRC has stated that it will update its procedures in line with new legislation and policy, when this is enacted. A link to the WRC Notice as published is attached here. 

The Minister for Business, Employment and Retail confirmed that the government will introduce legislative amendments without delay to enable the WRC to continue to discharge its statutory functions in line with the Constitution. He confirmed that his department is currently drafting emergency legislation to be introduced as a matter of urgency in the coming weeks.

Conclusion

Current and potential complainants and respondents should familiarise themselves with the new WRC procedures, keeping in mind that they will be updated. 

As we await the amending legislation, parties can expect that delays with hearings are likely. An application for an adjournment is typically made shortly after receiving notification of a hearing date. However, bearing in mind that the WRC Notice also includes a provision that: 

“…unless a postponement is granted in advance, all currently scheduled hearings will commence in the normal manner and proceed to conclusion subject to the requirement that it will be necessary to adjourn where a serious, direct conflict of evidence arises,”

the parties to a complaint should be prepared for the possibility that an advance adjournment application may be refused and that they may have to prepare for, and attend, the scheduled hearing and make the adjournment application at the commencement of the hearing. The WRC Notice states that the parties may use the hearing to “case manage the complaint(s) to identify areas of contention and/or agreement”. 

The fact that WRC hearings may become more protracted, formal and will be conducted in public may lead some parties to consider mediation or to explore direct resolution of complaints in advance of matters proceeding to hearing.   

For further information, please contact Lorraine Smyth from the ByrneWallace LLP Employment Law team, or your usual ByrneWallace LLP contact.