The Adjudication Context 

The Workplace Relations Commission’s (WRC) adjudication service investigates disputes, grievances and claims made by individuals or small groups under employment, equality and equal status legislation. Under Section 41 of the Workplace Relations Act 2015, Adjudication Officers (AO) are obliged to ‘inquire into’ complaints or disputes referred to them by the Commission’s Director General. The same legislation also directs AOs to ‘give the parties to the complaint or dispute an opportunity to be heard’ and to present relevant evidence.  

Arising therefrom, the fully independent AO has sole responsibility and is obliged to ‘make a decision’ – or ‘recommendation’ in the case of industrial relations-type disputes - in accord with the relevant legislative provisions. In their role in the administration of justice, AOs are exercising functions and powers of a judicial nature, within the meaning of Article 37 of the Irish Constitution. Notably, to supplement the Commission’s internal cohort of AOs, it also retains theservices of ~44 external AOs. 

Adjudication Workload 

The Commissionreports that nearly 6,000 complaint applications (comprised of over 12,000 individual complaints) were lodged in 2021. Whilst claims can be made via any one or more of over 40 pieces of legislation, specific complaints in relation to pay are the most common, followed by unfair dismissal, discrimination/equality and working hours. Thisrange contributed to over 3,000 adjudication hearings being held during 2021. Of course, not all complaints end up at adjudication, as some are settled or withdrawn, others are referred to mediation, whilst others are ‘stayed’ - pending related decisions in other fora - whilst some are simply adjourned for a variety of reasons. 

As a reflection on the quality of the adjudication service’s work, it is recorded that in 2021, the Labour Court issued 275 decisions in relation to appeals of AO decisions/recommendations. Of these, almost two-thirds were upheld (62%) andless than one-fifth (17%) were varied or overturned (18%), whilst the outstanding 3% failed to be considered. Notably, the number of WRC decisions upheld in 2021 was the highest since the Commission’s establishment. 

Approach to Hearings 

There is a different approach to employment rights versus industrial relations type hearings at the Commission’s adjudication service. That is, employment rights cases are about defining the rights and obligations of parties via the application of the law, whereas industrial relations related hearings are about finding a fair basis for resolving a dispute vis-à-vis standards expected of a ‘reasonable’ employer and worker. As a result of this distinction, employment right(s) cases tend to be more formal (e.g. witnesses can be (cross) examined under oath/affirmation), whilst industrial relations type hearings tend to focus on the parties’ submissions/arguments. This latter type alsoallows for private (as opposed to ‘in public’) hearings and fordiscrete or side talks between the parties and the adjudicatordesigned to progress matters toward a settlement or recommendation.Notably, whilst AO decisions/recommendations are issued to the parties and published on the Commission’s website, industrial relations type hearings (taken under Section13  of the Industrial Relations Act 1969) are conducted in private and the eventual recommendation notice is anonymised.  

As practitioners are aware, courtesy of Covid-19, in recent years the Commission has convened the vast majority of its adjudication hearings on a remote/virtual basis. However, many practitioners will welcome the Commission’s commitment (in its 2020 Annual Report) to reviewing this approach, with a view to the reinstatement of ‘in person’ hearings. Accordingly, with the pandemic’s abatement and the return to ‘in person’ proceedings, it is timely to specify some ‘best practices’ associated with the conduct of hearings. 

It should also be noted that prior to submitting a complaint, in instances there is an obligation on the complainant to address preliminary matters (e.g. with minimum wage complaints one is obliged to request an earnings’ statement from the employer).  

2. Comply with Time Limits 

On a broader (but consequential) note, the 2015 Workplace Relations Act provides that a complaint/dispute must be referred (in most instances) within 6 months of the alleged contravention (i.e.when calculating, the last date of contravention applies and in dismissal cases the actual dismissal date – regardless of internal appeal proceedings - applies).The AO can extend this limit (by up to 6 months) if the delay can be attributed to a ‘reasonable cause’.However, the AO has no power to extend the time limit beyond 12 months after the last alleged contravention (n.b. 24 months for a redundancy payments complaint). Note that such extensions are ‘exceptional’ and it is also notable that when asked what would constitute ‘reasonable cause’, one AO recently publicly acknowledged that she would ‘struggle to think of what would be a typical one’. 

3. Be Aware of Public Nature of Hearings  

At this preliminary stage parties should be aware that (further to the Zalewski-Supreme Court decision [2021] IESC 24),save in exceptional circumstances, the provision for a private hearing - of employment and equality rights claims, as opposed to industrial relations issues - no longer applies. Furthermore, arising from the same decision, the identity of the complainant and the respondent is no longer anonymised, though applications for an exemption are assessed by the designated AOwhere it is proposed that ‘special circumstances’ apply. 

4. Submit Documentation Early  

Parties are obliged to submit all relevant documentation to the WRC as early as possible (but no later than 15 working days prior to the hearing) and to copy same to the other parties. In exceptional circumstances only, the AO may grant a request for or decide that further information needs to be submitted post-hearing and the timeline(s) for such submission(s) are agreed at the hearing.  

5. Advise of Witnesses in Advance  

Likewise, the complainant and the respondent sides are obliged to advise the Commission of their witness list in advance of the hearing, together with an indication of their specific role in the case vis-à-vis the complaint(s).  

6. Make Any Requests for Postponements Early  

Postponement requests ‘must be made as early as possible’, on notice to the other parties, together with supporting documentation pertaining to the reasoning for the application. Of course, a hearing can be postponed on the day should the AO be satisfied that there is good reason. However, should the complainant fail to attend, the AO may hold that their complaint is ‘not well founded’ (having confirmed that parties have been properly notified about the hearing in advance). 

7. Ensure Any Special Requirements Are Notified in Advance  

Should either party to the proceedings, the representatives or the witnesses have any special requirements (e.g. an interpreter), this request should be made well in advance of the scheduled hearing. 

At the outset of the hearing, the AO outlines a prescribed range of substantive and procedural matters pertaining to hearings and the specific claim(s) being inquired into. Whilst interested parties (i.e. the claimant(s), respondent and their representatives) may prefer to proceed directly to the facts and assertions associated with the claim(s), this may ultimately prove counterproductive. Related thereto, parties should treat each other, the AO and the Commission’s staff with respect. When faced with any form of disruptive or abusive conduct, the AO will advise the offending party that their misconduct – and/or a failure to adhere to the AO’s ruling – runs the risk of having the hearing terminated and the case decided against them. That is, any failure in this regard may necessitate the termination of proceedings (see A General Operative v A construction firmADJ-00020017). So, once the ‘ground rules’ have been outlined and agreed, stick to them (e.g. no interruptions). 

10. Consider Settlement Discussions  

Both parties should carefully consider the option (normally extended by the AO at the outset of the hearing) to ‘engage in discussions’. Like the preceding offer of mediation, these discussions are designed to enable the parties to settle their differences directly without the AO’s involvement. This option enables parties to reach agreement privately/confidentially, speedily, at less cost and in an informal non-adversarial way.This obviates the necessity for a full hearing or a subsequent appeal. Indeed, settlements derived from such discussions may well prove to be more acceptable than an eventual decision/recommendation from an AO. Indeed, some would say that a settlement reached by the parties is a much more attractive option than waiting for a decision from an AO, whose case insights are constrained by the prevailing legal provisions andwhat the parties present in advance of and at the actual hearing. It is also relevant that - should both parties consent - a case can be decided on the basis of written submissions. 

11.  Be Aware of Potential for Preliminary Matters to Arise   

On occasion, at the outset of a hearing, the respondent will want to raise a preliminary matter of a jurisdictional nature (i.e. grounds for the AO not to hear or to reject the claim(s)). In such circumstances it is the prescribed practice – save in the most exceptional cases – to deal with both the preliminary and substantive issues at the hearing (i.e. the decision on the preliminary issue is reserved). Hence, the substantive case evidence may be heard without prejudice to any such preliminary objections of a jurisdictional nature. Notably, this practice is based upon guidance from the Superior Courts and the fact that the Labour Court may not remit the matter back to the WRC in most case types.  

12. Prepare an Outline of the Case 

 Both parties are asked to give a concise outline of their position in relation to the complaints made, with the case type determining who goes first (i.e. the party upon whom the burden of proof rests). Thereafter, parties are enabled to make their case/arguments/submission and to present their evidence and witnesses.  

13. Follow Guidelines for Witnesses  

AOs have the power to subpoena witnesses and documentation. Amongst the range of rules and prescriptions pertaining to witness evidence, it is important to note that a witness should not speak with other witnesses about the case before or during the hearing. It is also important to note – since the aforementioned 2021 Zalewski-Supreme Court decision – that evidence is given under oath/affirmation and false evidence rendered thereunder is a criminal offence (i.e. perjury). Furthermore, if a witness is in the middle of being cross-examined and there is a break in proceedings, they shouldn’t discuss their evidence with their representative or anyone else prior to the hearing re-commencing. The WRC’s ‘Witness Guidelines’ are available on the Commission’s website and are a useful resource for all parties. 

14. Prepare a Summary Statement  

Approaching the close of the hearing, both parties are invited to make ‘summary statements’. Note that this does not extend to the provision of new evidence or documentation. However, careful consideration should be given to the preparation of such statements, as they are the parties’ last opportunity, at the adjudication hearing, to summarise their key points/arguments. 

15. Await Decision  

AOs endeavour to issue (where applicable) legally robust, sound and reasoned decisions. In fact, such determinations necessitate a 5-part report, that summarises the case background, the cases presented by both parties (i.e. complainant and respondent), the AO’s findings and conclusions and the final decision or recommendation. Notably, this decision is reserved and not disclosed/announced at the hearing.With regard to timescale, it is also relevant that the Commission’s Adjudication Service has a target of producing 90% of decisions within 28 working days of a hearing, though various factors can serve to extend this timeframe. 

16. Be Aware of Potential for Appeal to the Labour Court 

Should either (or both) parties be dissatisfied with the decision/recommendation, it can be appealed to the Labour Court (or Circuit Court for Equal Status complaints), but this application must be effected within 42 days of the decision date. The decisions are legally binding and if necessary, can be processed via the District Court for enforcement purposes (excl. industrial relations type recommendations). 

An appeal enables parties to have the case re-heard ‘de novo’ (over again, as a new case). Notably however, the aforementioned Legal Island research found that ‘a full 61% of appeals were dismissed with a success rate of 25% .. discounting variations and remittals’. 

This article was prepared by Dr. Gerry McMahon.  Dr. Gerry McMahon, B.Comm., M.B.S., M.Phil. (Labour Law) has worked in training/academia for over 30 years and as an Adjudicator at the WRC. He is the M.D. at Productive Personnel Ltd., H.R. consultancy and training company and co-author of Industrial Relations in Ireland: Theory and Practice, eds. 1-4, Gill and Macmillan - ppl1gerry@gmail.com