Minister for Enterprise, Trade and Employment, Leo Varadkar TD (the “Minister”), last week signed an order (the “Order”) authorising the Workplace Relations Commission (WRC) to conduct its hearings remotely.
The Order appoints the WRC as a designated body under the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (the “2020 Act”), an act that was introduced to address the challenges faced by the court system and legal system as a result of the ongoing Covid-19 pandemic. The 2020 Act makes provision for remote hearings, the use of electronic means in civil proceedings and the giving of evidence using video link, among other matters.
Section 31 of the 2020 Act grants the authority for hearings before a “designated body” to take place remotely. It provides that legislation which refers to the holding of hearings by a designated body will be modified to allow for the holding of those hearings remotely.
Remote hearings prior to the Order
Like most organisations, the WRC was “locked down” for three and a half months earlier this year due to Covid-19 restrictions. This caused a significant backlog in the hearing of complaints which it is now trying to address.
In April 2020, the WRC carried out a broad consultation about the feasibility of remote hearings and other measures to deal with WRC complaints during Covid-19. In response to the consultation, the WRC conducted trial hearings in May and began to facilitate remote hearings in July.
The WRC had been selecting more “straightforward” complaints for remote hearings, such as complaints relating to working time, payment of wages and trade disputes. Parties to complaints selected for remote hearing were not obliged to proceed with the hearing virtually and could opt for a face-to-face hearing instead.
This presented issues for the WRC as the vast majority of parties to selected complaints were reluctant to participate in remote hearings. According to the WRC, of the complaints selected for remote hearing, only 16% of parties consented to the remote hearing.
Compulsory remote hearings
Pursuant to the Order, the WRC will no longer need consent from parties to proceed with a remote hearing. This is effective from 24 September 2020.
The WRC has confirmed it will cease seeking consent from parties and it will gradually increase the numbers and types of cases to be dealt with via remote hearing.
The power to conduct hearings remotely is not absolute. Section 31(2) of the 2020 Act provides an exception and states that the authority to conduct remote hearings will not apply if the designated body, of its own volition or following receipt of representations by a party concerned, is of the opinion that it would be unfair to a concerned party or contrary to the interests of justice.
Implications for employers
The introduction of compulsory remote hearings presents opportunities for parties to WRC complaints:
- Virtual hearings will assist to reduce the backlog of complaints and bring about a speedier resolution of disputes.
- It will enable overseas witnesses to attend hearings where previously they may have been unable to do so due to travel restrictions. It is also unlikely that there will be same restrictions on the number of individuals permitted to attend the hearing as are in place at present.
There may, however, be difficulties from a practical and logistical perspective:
- The absence of a face-to-face meeting can reduce the opportunities for an on-the-day settlement.
- Parties may encounter issues communicating with their representatives during the hearing. While communication will be possible via mobile devices, it may be necessary to request periodical breaks in order to effectively take instructions.
- Witnesses may be coached, either by individuals off-camera or by reading a script.
- The effectiveness of examination and cross-examination of witnesses may be impacted as it may be more difficult to evaluate witness testimony on screen.
- There are also privacy and data protection concerns. Where a hearing is conducted remotely, potentially in multiple locations, the privacy of the hearing is more difficult to police.
The WRC is very mindful of the above mentioned difficulties and, in its consultation paper on remote hearings, it has identified a need to establish procedures to ensure that the conduct of remote hearings complies with its obligations to adhere to fair procedures and natural justice.
Employers will need to familiarise themselves with any such procedures if called to a remote hearing and additional preparations will be required to adjust to the new form of hearing.