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The Workplace Relations (Miscellaneous Provisions) Act 2021

29 July, 2021 Author: Caoimhe Heery

Oaths, Fines, Hearings in Public, Adjudication Officers Tenure:-  New legislation on the Workplace Relations Commission’s Procedures is enacted.

Arising out of the decision of the Supreme Court in Zalewski v An Adjudication Officer, the Workplace Relations Commission, Ireland and the Attorney General [2021] IESC 24, the Oireachtas has now enacted the Workplace Relations (Miscellaneous Provisions) Act 2021 (the “Act”).

While the decision in Zalewski found the Workplace Relations Act 2015 (the “2015 Act”) which prescribes certain rules around how the Workplace Relations Commission (the “WRC”) conducts its business, to be constitutional as a whole, it did find aspects of the Workplace Relations Commission’s procedures required amendment. The Act, which was brought into effect on the 22nd of July 2021, seeks to resolve these issues.

Administration of Oaths and Affirmations

Under the Act, Adjudication Officers may now require a person giving evidence in proceedings to do so on oath or affirmation and can administer such oaths and affirmations. A false statement given under oath or affirmation is an offence and carries a liability of a class B fine, or imprisonment for a term not exceeding 12 months, on summary conviction, or to a fine not exceeding €100,000 or imprisonment not exceeding 10 years, on indictment.

Conducting proceedings in public, and publication of decisions

Proceedings of the WRC shall now be conducted in public unless there are special circumstances as determined by the assigned Adjudication Officer. In that regard, however, what amounts to “special circumstances” has not been defined. Other than where said special circumstances apply, every decision shall be published on the internet, and the parties shall be identified in the decisions published.

The Act also provides for a review within 12 months of the operation of the amendments to any relevant legislation in respect of holding proceedings in public, and publishing decisions in public.

Applications on notice for enforcement of decisions of Adjudication Officers

Applications for enforcement of a decision of an Adjudication Officer must now be made to the District Court on notice to the employer. The previous position that the employer was not supposed to be heard prior to any order being made has been repealed.

Appointment and Revocation of Adjudication Officers

The Act inserts into the 2015 Act a number of circumstances in which an individual will be ineligible for appointment as an Adjudication Officer or may have their appointment revoked. Examples include conviction on indictment of an offence, conviction of an offence involving fraud or dishonesty, a restriction or disqualification under Companies Act 2014.

An appointment can also be revoked if the Adjudication Officer has, become incapable through ill-health of performing their duties, engaged in serious misconduct, failed to perform their functions for a continuous period of 3 months, or has contravened a provision of the Ethics in Public Office Acts 1995 and 2001.

The power of appointments and revocations will now lie with the Government, rather than the Minister for Jobs, Enterprise and Innovation. The Act also sets out the notice period for revoking appointment and provides that an Adjudication Officer will have the opportunity to make representations where it is proposed that their position is revoked or they are deemed ineligible.

Conclusion

The Act makes a number of procedural changes of which employers and employees alike should be aware when deciding on whether to proceed with or defend a claim in the WRC, in particular with respect to the public nature of future hearings and the publishing of decisions. It remains to be seen as to what exactly the Adjudicators will conclude amounts to “special circumstances” in which proceedings should be conducted otherwise than in public. It will be interesting to see whether the public nature of the forum will lead to a reduction in the number of claims running to full hearing before the WRC. As per the Supreme Court in Zalewski, “where there is no publicity there is no justice”.

For more information please contact Caoimhe Heery, Partner at email: caoimheheery@fod.ie or phone +353 87 2935332; Kate Duffy, Solicitor at email: kateduffy@fod.ie or phone +353 91 332 100; or any member of the Flynn O’Driscoll Employment Team.

This article is current as at 28th of July 2021 and is provided for information only and does not constitute legal advice.

Caoimhe Heery

Caoimhe Heery

Partner

Kate Duffy

Kate Duffy

Solicitor

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