On the 6th April 2021, in a landmark decision of Zalewski -v- Adjudication Officer and WRC, Ireland and the Attorney General  IESC 24 the Supreme Court declared that laws placing an absolute ban on employment disputes being heard in private is unconstitutional.
The Court made the declaration that certain provisions of the 2015 Workplace Relations Act (section 41(13) of the 2015 Act and section 8(6) of the Unfair Dismissals Act 1977) are repugnant to the Constitution in ruling on an appeal brought by a Polish man who claimed he was unfairly dismissed from his job at a convenience store.
The ruling means that holding Workplace Relations complaints hearings in private is now unconstitutional; and so is the absence of any provision for evidence under oath.
At present, hearings are conducted remotely and practically, there is likely to be difficulties effecting these changes in the current environment. Should either party wish to progress by way of public hearing, it is likely the case that the hearing be postponed to such a time when a physical, face to face hearing can be facilitated.
The effect of the ruling is clear and requires several procedural changes to include the prohibition on public hearings being removed, as proceedings may, but not must, be heard in public. There will be hearings that will be heard in private however such hearings will relate to the Industrial Relations acts only or may include complaints of a sensitive nature that require to be heard in private in part or in full but that has yet to be discussed or defined.
This now means that in general, employers in equality or any work-related dispute cases can be named and identified where before parties were anonymised.
Employers should be aware that disputes will continue to be heard by the WRC and the Supreme Court specifically noted that this decision has no impact on previous WRC decisions or claims currently being adjudicated.
It is possible that both complainants and respondents will seek to postpone hearings until such a time that they can be heard at a physical hearing to facilitate the administering of the Oath.
The Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 enacted in August 2020 has provided for remote hearings in certain civil and criminal matters together with the more recent Order 40 Rule 9 of the Rules of the Superior Courts which permits deponents to swear affidavits remotely where they cannot be physically present. These developments may be considered by the legislature when making the necessary amendments to the 2015 Act and such amendments may provide for the administration of an oath remotely but that remains to be seen.
The Workplace Relations Commission have published a number of procedural changes on 16th April to include that all cases, save for industrial relations complaints) will be public and the administration of an oath where there is a serious and direct conflict of evidence. This is an immediate response by the Workplace Relations Commission, but we must wait on the government to introduce the necessary legislative amendments in order for the Workplace Relations Commission to continue to discharge its statutory function in accordance with the Supreme Court decision. We will update you with all the latest information as soon as we hear more.
If you are an employer dealing with a potential workplace dispute from an employee, it is important that you speak to one of our Employment Law Specialists today.
Contact us at: 01 663 2000.
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