by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.
Earlier this month, the Supreme Court delivered an important judgment in a case called Zalewski and subsequently issued an Order on 15 April 2021.
There is a detailed factual background to the case itself but, for most employers and HR practitioners, the decision is notable in general terms because it affects how the Workplace Relations Commission (“WRC”) must now conduct adjudication hearings under the Workplace Relations Act 2015 (“the 2015 Act”).
Mr Zalewski’s original unfair dismissal case against his former employer was initially before the WRC where his claim failed and he subsequently challenged the constitutionality of the WRC process and the 2015 Act, from which the WRC gets its powers. The constitutional challenge covered a number of grounds including the fact that Adjudication Officers were not legally qualified, the fact there was no inherent right to cross-examine a witness and the fact that hearings are not held in public.
This long running case resulted in a recent Supreme Court decision, which held that specific aspects of the WRC’s procedures were unconstitutional. The Court held that the manner in which WRC hearings were held, in private, was unconstitutional and that public hearings were “of the essence of the administration of justice”. The Court also ruled that the practice of witness evidence not being on oath must change and noted that “the absence of provision for the admonition of an oath, or any possibility of punishment for giving false evidence, is inconsistent with the Constitution”.
The Court further observed that while cross-examination was not precluded by the 2015 Act (and actually already occurs frequently in practice in many cases and is noted in the current WRC Guidance Note for a WRC hearing), it was not satisfied by the fact that there was no express provision for cross-examination as it was a fundamental aspect of constitutional fair procedures.
As a result of the Supreme Court decision, legislative amendments are necessary to enable the WRC to continue its functions in line with the Constitution. The Minister for Business, Employment and Retail has promised to introduce the necessary legislative amendments on an urgent basis. It is possible that a number of forthcoming WRC hearings may be postponed until these legislative amendments are finalised, particularly where there is a serious and direct conflict of evidence and the Adjudication Officer determines that witnesses must give evidence on oath. This may potentially cause further delays and backlogs to a system already under pressure from closures and reduced activity at various stages during the Covid pandemic.
The Supreme Court decision will therefore change how the WRC conducts its adjudication services in a very meaningful way.
The WRC has now also published notification of procedural changes on its website for all WRC hearing under the 2015 Act:
- The majority of WRC hearings must now be heard in public.. The public and members of the media will be permitted to attend. All WRC hearings are currently being conducted as remote hearings through the WebEx videoconferencing system. The WRC is putting arrangements in place for interested parties to request to attend such remote hearings although some limitations may be imposed if the numbers attending affect the quality of the IT connection;
- All WRC decision must now name the parties in respect of cases concluded after 6 April 2021. To date, many decision issued by WRC Adjudication Officers (including all unfair dismissal decision) anonymised the parties. In the future the names of employers and employees alike will be identified. This may create PR or reputational issues that did not arise to date in many cases;
- The WRC must require evidence to be provided on oath/affirmation, particularly if evidence is contested (which it is likely to be in many cases) with a possibility of prosecution for giving false evidence. In practice, perjury prosecutions are rare but this change will nevertheless concentrate the minds of witnesses compared to the previous WRC practice. Pending legislative amendments, WRC hearings may be adjourned if there are serious or direct conflicts of evidence or if the Adjudication Officer feels that it is necessary to take evidence under oath.
Employers should note that these changes do not affect mediations or “trade dispute” referrals under the Industrial Relations Acts 1969 which are unaffected by the ruling.The WRC has indicated that new procedural guidelines will issue in due course.
These are significant changes to WRC adjudication procedures for employers, HR practitioners and indeed all users of the WRC and will affect how many parties approach WRC litigation.
 Tomasz Zalewski v Adjudication Officer, WRC & Ors, Supreme Court, April 2021
About the author
Barry Walsh is Partner and Head of the Employment Team at Fieldfisher. Barry advises a wide range of Irish and multinational corporate, public and institutional clients on all aspects of Irish employment law from recruitment to retirement including contentious, advisory and transactional work. Barry is experienced in acting for clients with respect to contractual and termination issues with senior executives. In addition to advising on employment law, he has also advises on industrial relations issues arising from mergers and acquisitions, outsourcing and redundancy situations. He has significant litigation experience and has directly represented clients before the European Court of Justice, the Irish civil courts and all specialist Irish employment tribunals.