by Barry Walsh, Partner and Head of the Employment Team at Fieldfisher.
April 2020 has been one of the more unusual months in the relatively short life of the Workplace Relations Commission (WRC).
Hearings and in-person mediations have been on hold since 13 March 2020 due to the outbreak of the Covid-19 pandemic. The usually bustling hearing rooms of Lansdowne House have fallen silent! All hearings and face-to-face mediations which had been scheduled have been postponed and will (unless otherwise settled) be rescheduled for a future date. This will continue until some type of remote system is implemented or in person hearings and mediations return. A telephone mediation option remains available for some cases.
Of course, in the meantime, it has been a particularly busy time for employers many of whom have been forced to take various cost-cutting employment measures such as lay-offs and redundancies. At times like this there is normally a spike in employment law claims. There may well be employees contemplating or actually taking claims in the WRC in response to such measures by their employers. All of this combined may potentially lead to a backlog of claims and delays in scheduling of hearings when something resembling normal business resumes. The 8,000 complaint files and 5,000 adjudication hearings in 2019 gives you an idea of how much ground may have to be made up for 2020 when hearings resume.
It is for this reason that the WRC has published a Consultation Paper on Remote Hearing and Written Submissions during this difficult time. The Consultation Paper acknowledges the current challenge to the WRC in delivering its core services. It understandably encourages users to engage as much as feasible with the continuing telephone mediation service to resolve disputes amicably thereby reducing any backlog of claims. The Paper identifies the possibility of a written procedure system for adjudication of claims where there is a preliminary jurisdictional issue. This may be suitable for cases that are clearly out of time or are misconceived. It also moots the possibility of “virtual” hearings with the consent of the parties for more “straightforward cases”.
As if that was not enough, the High Court issued its much-anticipated decision on a constitutional challenge to the WRC’s adjudication procedures in a case that had been rumbling on since 2016[1]. The claimant in that case had made various procedural allegations that went to the core of the WRC’s adjudication system. This included the points that Adjudication Officers do not have to be legally qualified and that there is no statutory right of cross-examination at adjudication hearings. There are mixed views amongst employment law practitioners about how serious such issues really are in practice and whether there really is a case for reform of the adjudication procedures. In any event, the challenge was dismissed and the High Court in effect held that the WRC’s statutory procedures are constitutional. The WRC (and indeed many practitioners and users) will be pleased with the outcome and it removes what may well have been a background distraction to its continuing work. Any adverse finding against the WRC’s procedures would have thrown the whole system into disarray and caused uncertainty and delay for users. While an appeal trip to the Supreme Court cannot be ruled out on this one, it concludes what has been an interesting month for the WRC!
[1] Zalewski v Workplace Relations Commission [2020] IEHC 178
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.
