20 November 2023
The Workplace Relations Commission received 12,800 specific complaints last year, an increase of 7% on the year before, according to the Workplace Relations Commission’s most recent Annual Report. Many employers may be asking why the increase in complaints, and what functions does the Workplace Relations Commission perform.
The Workplace Relations Commission (the “WRC”), is an independent statutory body which provides several employment related services including: information to members of the public; workplace inspections; adjudication services; and mediation and conciliation services.For most employers, the most important service provided by the WRC, is that of the adjudication service. Correspondence from the adjudication services generally means that an employee has filed a claim against the employer with the WRC. The correspondence informs the employer of the details of the claim, includes a copy of the claim form, and informs the employer of the options open to the employer i.e. mediation or adjudication.
Mediation is a service provided by the WRC, the purpose of which is to seek a compromise between the parties without the need for adjudication. The WRC Mediation Service appoints a mediator to meet both parties, either virtually or in person, at an appointed venue, to seek a resolution of the dispute. The mediation process is completely impartial, and both parties must voluntarily participate.
If an agreement is reached, it is recorded in writing, signed by both parties, and is binding as if it were a decision of an adjudication officer. If, however, an agreement cannot be reached at the conclusion of the mediation process, the claim moves forwards to the adjudication service.
Employers should note that anything discussed through the mediation process cannot be brought forward to the adjudication hearing, regardless of whether terms were almost agreed or not.
If an employer chooses to engage in mediation and an agreement is reached, the matter is settled and the claim is withdrawn. If, on the other hand, an agreement is not reached, or if an employer chooses not to engage in mediation, the claim moves forward to adjudication.
As a general rule, adjudication will be in the form of a hearing, but there is an option, in certain circumstances, for the matter to be determined by an adjudication officer by written submission only.
Once a date has been set for the adjudication hearing, both parties are required to submit written submissions to the WRC, outlining the facts of their case, supported by caselaw. The WRC recommends written submissions should be received by the WRC at least 15 days prior to the date of hearing.
Since the introduction of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. No. 359/2020 which designated the WRC as a body empowered to hold remote hearings, adjudication hearings can now be held fully remotely, in person, or hybrid.
On the day of the hearing, both parties are required to attend. Claimants and respondents can represent themselves as “lay litigants”, or either may have their legal representative present on the day. Evidence is given on both sides, with each party given an opportunity to cross- examine the evidence of the other.
The WRC performs a quasi-judicial function, with the adjudication officer overseeing the evidence of both parties and issuing a decision of the outcome of the proceedings on the WRC website (with the parties receiving the decision two weeks prior to website publication). There is no set timeframe for a WRC decision to be issued, with each adjudication officer differing in their timeframes.
Once a decision of the WRC is issued, either party has 42 days from the date of the decision to submit an appeal to the Labour Court (or the Circuit Court for Equal Status claims). Where a decision is issued against a respondent awarding a monetary amount to the claimant, and no appeal has been filed, the respondent must pay the amount (keeping a record of transfer) within 56 days of the date of the WRC adjudication decision, or risk the claimant filing District Court enforcement proceedings.
Written submissions in respect of the appeal and legal sources are submitted to the Labour Court in advance of hearing, similar to the WRC. A Labour Court hearing differs to that of the WRC in that the hearing is not held before one person but three people. There are 13 full-time members of the Labour Court – a Chairman, four Deputy Chairmen, and eight Ordinary Members (four of whom are Worker Members and four of whom are Employer Members). A Labour Court hearing is comprised as follows:
The hearing is treated as a “de novo” hearing i.e. as if the matter were being heard for the first time. Both parties put forward their case, with the opportunity to cross-examine afforded to each party, whether legally represented or not. The members of the Labour Court may question witnesses in order to clarify issues raised.
An issued decision of the Labour Court is binding. If an award is made against the respondent, who then fails to make payment, the claimant can pursue enforcement proceedings through the civil courts, after the expiry of 42 days from the date of the decision.
The Supreme Court decision of Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 is one of the most important matters to have moved through the WRC process to the Supreme Court for determination. As a result of this decision, Adjudication Officers are deemed to be administering justice – that is, exercising limited functions and powers of a judicial nature within the meaning of Article 37 of the Constitution.
The effect of this decision on WRC adjudication hearings is that what was previously heard in private, with the names of both parties remaining private in published decisions, is now heard in public, and the identification of both parties is included in the published WRC decisions (save for Industrial Relations disputes which continue to take place in private with parties anonymised in the adjudication decisions).
The Zalewski decision also brought the WRC in line with civil court requirements in terms of giving evidence before the WRC – evidence must be given under oath or by affirmation, with the offence of perjury before the WRC carrying a sentence of up to 12 months imprisonment and/or a fine of €10,000 on summary conviction.
With the introduction of the public hearings and named party decisions, comes increased public interest with mainstream media regularly publishing WRC decisions of note. While the Zalewski decision has brought many important changes to the WRC process, the rise in WRC claims may be attributed to the media attention, with the public element of the decisions being used as a tool to edge some employers into an agreement prior to adjudication.
We advise any employer who receives notice of a WRC claim to take immediate action and contact their legal representatives, in order to discuss their options. Our Employment Law team, led by Aoife Newton, can advise on every stage of the employment process. Please contact a member of the team for more information.
