Legal Updates

The Workplace Relations (Miscellaneous Provisions) Act 2021 (the Act) has been signed into law by the President and is awaiting commencement.

Background

The Act was introduced to cure certain defects in the Workplace Relations Commission’s (WRC) procedures identified by the Supreme Court in Zalewski v. Adjudication Officer & Ors [2021] IESC 24. In that judgment, the Supreme Court unanimously held that certain sections of the Workplace Relations Act 2015 were inconsistent with the Constitution because they provided for hearings otherwise than in public in circumstances where Adjudication Officers, in performing their functions, were involved in the administration of justice, albeit to a limited extent. You can read more about the Zalewski ruling in our previous briefing here.

Provisions

The Act provides for certain aspects of the appointment or removal of Adjudication Officers, but of most significance, provides for three major reforms to the WRC’s practices.

Once the Act is commenced, WRC hearings in unfair dismissals claims will be held in public unless an Adjudication Officer determines that there are “special circumstances” which would justify excluding the public. The further implication of the public nature of hearings is that the WRC will, in the absence of special circumstances, no longer anonymise its decisions when publishing its decisions on its website, thus introducing a publicity risk for parties. This requirement of public access will also have logistical implications for the WRC in terms of the physical space requirements to accommodate the parties and the public.

The second fundamental change is that Adjudication Officers will be empowered to require a witness to give their evidence on oath or affirmation and to administer the oath or affirmation. The third, related, change is that a witness who knowingly gives false material evidence under oath or affirmation will be guilty of an offence.

A practical consideration which is causing real concern to practitioners in cases currently listed for hearing in the WRC is that, until such time as the Act is commenced, the question of whether there is a need for an oath or affirmation will only be decided once an Adjudication Officer has embarked on a hearing. If the Adjudication Officer decides that there is sufficient conflict on the evidence, as there typically is, and that evidence should be given on oath or affirmation, then the hearing would have to be adjourned until the new Act is commenced giving the Adjudication Officer the necessary power to administer the oath or affirmation. This means that parties have to fully prepare for hearings where there is little prospect of them going ahead. This clearly has implications in terms of the WRC’s own resources and the wasted time and costs for parties. We anticipate that the commencement order will be signed sooner rather than later to enable the WRC to get on with its business and start setting hearing dates.

Commentary

The Zalewski decision and the need for legislative reform has caused delays in the WRC allocating hearing dates. Those delays have added to the delays caused by the Covid restrictions, with the overall result that certain of the primary claims to be determined in the WRC will suffer very considerable delays.

It remains to be seen how the test of “special circumstances”, required to preclude the public from part of all of a hearing, will be interpreted. Perhaps that aspect too will ultimately end up being determined by the courts.

If you require advice in relation to the matters covered in this briefing please contact a member of our Employment Team.