Background

The Adjudication service is one of the principal services of the Workplace Relations Commission ("WRC"). The WRC Adjudication service adjudicates on statutory employment rights complaints and on equal status complaints. It also makes non-binding recommendations on individual disputes under the Industrial Relations Act 1969.

The Law Society Employment & Equality Law Committee has held stakeholder consultations with the WRC Adjudication service and, working with the Adjudication service, has prepared this Practice Note for practitioners using the service.

Adjudication Procedures

• The current WRC procedures - WRC Procedures in the Adjudication and Investigation of all Employment and Equality Complaints and Disputes ("the Adjudication Procedures") were published on 22 December 2021 and are available at the WRC website.

• The Adjudication Procedures take account of the Supreme Court judgment in Zalewski[1] which determined that the exercise of powers by WRC Adjudication Officers is the administration of justice within the meaning of Article 37 of the Constitution.

• The Adjudication Procedures are non-statutory.

• The Adjudication Procedures provide detailed information on the normal working practice of the WRC in adjudication claims.

• The WRC reserves the right to vary these procedures generally and, as appropriate, in the circumstances of individual cases.

• The WRC strives to remain flexible and user friendly within the general confines of these procedures and applicable jurisprudence.

• Early Lodgement of Submissions: One of the notable features of the Adjudication Procedures is that any written submissions should be lodged fifteen working days before the scheduled date of the hearing. However, there is nothing to prevent parties lodging a submission further in advance of a hearing date. “Submissions” are most useful in Unfair Dismissal, Equality, TUPE and Protected Disclosure cases. This is to facilitate an efficient hearing so that parties know the case they have to make/defend and Adjudication Officers can prepare for hearings in good time. It also aims to maximise scarce resources to avoid adjournments or last minute settlements in which hearing slots are then lost.

• All WRC hearings involving the administration of justice, (that is all WRC cases, save for those disputes under S 13 Industrial Relations Act 1969), will be conducted in public, unless the relevant Adjudication Officer decides, that of their own motion, or following an application from a party to the proceedings, that due to the existence of “special circumstances”, the proceedings should be conducted in private. The policy giving a non-exhaustive list of what might constitute ‘special circumstances’ is available on the WRC website.

Mediation

WRC Pre-Adjudication Mediation is available in the majority of cases referred to the WRC. It should be noted that Pre-Adjudication Mediation is not available in individual Industrial Relations or Redundancy complaints. Practitioners are actively encouraged to consider earlier involvement in the mediation process, to facilitate a mutually convenient time for all parties. Mediation for unfair dismissal, employment equality or equal status cases is delivered in a face-to-face format. Mediation for all other employment rights cases is provided by telephone and email in the first instance. A face-to-face mediation can be facilitated in these cases, if requested by the parties. 

The WRC has a Frequently Asked Questions document available on its website:

• View Frequently Asked Questions about WRC Pre-Adjudication Mediation  

The WRC Mediators Principles and Code of Ethics is available:

• View the WRC Mediators Principles and Code of Ethics

Hearing Notifications

It is the current WRC working practice (subject to available resources) for parties to be notified of hearing dates approximately seven weeks in advance. Twenty-one days is the minimum for such notifications.

Hearing Postponements

The WRC receives a high number of requests for postponement of scheduled hearings. There has been an increase in postponement applications of approximately 150% when comparing 2021 with 2020 volumes, with this high-level of postponement applications continuing. This has resulted in the introduction of new postponement procedures in July 2021.

• View the WRC postponement policy

The WRC strongly recommends early applications for postponements.

Process One: If practitioners seek a postponement on consent within five days of the hearing notice, it will be granted automatically without any need for reasons or evidence.

Postponement applications made later or without consent should be made in line with the attached postponement procedures and using the form provided.

Parties need to put the other side on notice and provide evidence of exceptional circumstances and substantial reasons to support their application, as postponements may adversely affect the other side and the timely adjudication of the case. In the same way as before the Labour Court or civil courts, if Counsel has a diary clash an alternative representative may need to be instructed.

There are significant administrative burdens associated with postponement applications for the WRC, but it strives to do what it can to provide a fair system to assist parties in all cases.

An appeal is available where a postponement request is refused. Such appeals must be made within two working days of the date of the postponement refusal. These appeals are determined by an Adjudication Officer either in advance of the hearing or, if made less than five working days from the hearing date, at the commencement of the hearing.

Manner of Hearings: Remote, hybrid or in-person

There are three types of adjudication hearings which can be conducted at the WRC:

• In-person;

• remote; or

• limited use of hybrid (a mix of in-person attendance with certain witnesses attending remotely)

Following the extensive use of remote hearings during the Covid 19 pandemic, the WRC is now generally returning to in-person hearings subject to the interests of justice and fairness in the particular case. Over 70% of scheduled hearings are now in-person. The WRC believes that in-person hearings are generally preferable where oral evidence features.

Virtual hearings may continue to be offered in some cases depending on the nature of the case. The WRC has confirmed that in, general, if there is consent from both parties to a remote hearing, the WRC will consider it, but it is a matter for the WRC to decide subject to the test in section 31 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020, which remains in force.

In addition, the matter can also be dealt with by the Adjudication Officer “on the papers”, if both parties consent in writing to having it dealt with by an Adjudication Officer, without the need for a hearing.

The WRC offices in Dublin, Cork, Sligo, Ennis and Carlow provide a full suite of adjudication hearing and mediation services. These locations will be the primary venues for in-person hearings with some hearings in other areas being conducted in courts, hotel or other venues with conference facilities if necessary.

A substantial investment in technology would be required to provide hybrid hearings on an ongoing basis.

Interpreters

If either party requires a language interpreter (including ISL) please contact pru@workplacerelations.ie giving the relevant details.

Hearing Special Facilities

If either party requires special facilities at hearing (e.g audio loop system etc):

• From a complainant perspective there is a section to be completed if required on the eComplaint Form giving the relevant details.
• From a respondent perspective please email pru@workplacerelations.ie giving the relevant details.

Decision Timelines

The WRC target for completion and delivery of adjudication decisions is six weeks from conclusion of the hearing. This is extended if the Adjudication Officer seeks additional information/documentation to be lodged after the hearing by a certain date. However, it is noted that there are some variations experienced by practitioners on this timeline, particularly with complex cases. If there are particular cases where delay is an issue, practitioners should get in touch with the adjudication section of the WRC. Once decisions are issued to the parties, they will be uploaded to the WRC website within fourteen days.

Jurisprudence Report

In Q4 of 2022, the WRC published a summary of key judgments of the Irish Courts and the CJEU from 2015-2022 relating to decisions of WRC.The WRC hopes that this will be useful to legal practitioners and those interested in the work of the WRC.

• View the WRC litigation report