Some hearings that have already commenced before the Workplace Relations Commission may have to be restarted on foot of a recent landmark ruling by the Supreme Court, the Department of Enterprise and Employment has said.
The department is seeking as a matter of urgency to introduce amendments to the legislation governing the operation of the Workplace Relations Commission following the ruling.
However, it also signalled that once the immediate issues arising from the Supreme Court ruling were addressed, the Government would have to look at other policy and potentially legislative matters in this area. It said these related to the independence of the decision-makers and necessity to ensure that those carrying out these functions had the appropriate skills and capabilities.
On Tuesday, the department asked that the Oireachtas Joint Committee on Enterprise, Trade and Employment waive pre-legislative scrutiny of a proposed short Bill to address immediate issues arising from the Supreme Court ruling in early April.
Tara Coogan of the Department of Enterprise and Employment told the committee that it wanted to put in place a short Bill to ensure that the constitutional frailties that had been identified by the Supreme Court in the investigative procedures of the Workplace Relations Commission's adjudication services were "brought in line with the constitutional requirements so that the adjudication services of the Workplace Relations Commission can resume in full".
Ms Coogan said the Supreme Court ruling came into effect immediately without any grace period and that as a result the adjudication service of the Workplace Relations Commission was “very restricted in the matters that it can dispose of until such time that these amendments are carried to the 2015 (Workplace Relations) Act, the Unfair Dismissals Act, the Employment Equality Acts and the Equal Status Acts”.
Disruption
She suggested that even after the introduction of the proposed legislative amendments there would some disruption. She indicated that some hearings that may be half way to completion or had been adjourned may now have to be restarted, potentially before a new adjudication officer.
The proposed new legislation will allow for public hearings of adjudication cases in the Workplace Relations Commission, although the department said this would be at the discretion of the adjudication officer and there would be provision for the administration of evidence on oath or by affirmation. There would also be potential penalties in cases where false evidence was being wilfully provided at hearings.
Ms Coogan said that the Supreme Court had found that two aspects of the existing Workplace Relations Commission legislation introduced in 2015 were incompatible with the Constitution.
“Firstly, the Court found that the practice of holding all hearings in private as provided under section 41 (13) is not an acceptable feature of the administration of justice and therefore not compatible with the Constitution. Justice must be done in public and while there are situations where privacy is warranted, a blanket approach of hearing matters in private is not an acceptable feature of the administration of justice .
“This requirement to administer justice in public will also have an impact on the routine anonymisation of parties under section 41(14) of the 2015 Act. Anonymisation may be granted by the adjudication officer in session of the proceedings, having considered the circumstances and or justice, of the particular case.
“The second procedural weakness that the Court held was that the absence of a statutory provision for the administration of an oath, and any possibility of punishment for giving false evidence, is inconsistent with the Constitution.”
