Future Decisions of the Workplace Relations Commission*
The recent Supreme Court decision has completely altered the way in which the Workplace Relations Commission, in particular, operates.
Now cases will be heard in public except in very limited circumstances. Evidence will be given on Oath. The Adjudication Officers will have a degree of independence in that they can only be removed following fair procedures.
This all stems from the fact that the Supreme Court decision held that the Workplace Relations Commission is involved in the administration of justice.
Accordingly, one issue which has not been addressed but which will have to be addressed will be the format of decisions of Adjudication Officers.
Currently Adjudication Officers are extremely good at setting out the arguments and the factual and legal arguments of both sides. One issue that they will have to start addressing, going forward, is the basis under which they award an amount of money or reinstatement or reengagement in certain circumstances to a particular employee. Up until now the Adjudication Officers could simply set out that they regarded a particular sum of money, for example, to be fair and reasonable in the circumstances. Now decisions are going to have to go further. They will have to set out why and to what extent and the considerations which an Adjudication Officer took into account when setting compensation.
For example, in an Unfair Dismissal case if an Adjudication Officer has held that an employee contributed to their own dismissal it may well be that they will have to set out to what extent and effectively to what proportion the Adjudication Officer has determined that the compensation should be reduced and how that determination has been arrived at. This will apply across the board for all pieces of Legislation which Adjudication Officers are dealing with. For example in a case under the Employment Equality Legislation where previously they would have set out that they were of the view that a fair and reasonable award would be “X” they will now be obliged to set out why they are determining that figure. That will not be simply saying they regard it as fair and reasonable.
What happens if Adjudication Officers do not do this?
If Adjudication Officers do not do this then there is of course the potential that there is going to be a significant number of Judicial Reviews to the High Court. If the High Court finds in favour of the party bringing the Judicial Review then in those circumstances it is likely that matters will have to go back to the Workplace Relations Commission for a further hearing or at a minimum for the Adjudication Officer to set out their reasoning.
Once Adjudication officers have to set out their reasoning then that itself will be subject to Judicial Review.
It might be argued that in the alternative that this can be dealt with by way of matters going on appeal. That certainly is an argument. However, because Adjudication Officers will now be involved in the Administration of Justice that does not preclude a party seeking to lodge an appeal with the Labour Court, to preserve their appeal rights but at the same time bringing a Judicial Review to the High Court to have matters clarified so that either an employer or employee can determine whether they actually wish to proceed with an appeal.
There is significant change now coming to the Workplace Relations Commission and this will be one of the biggest challenges.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.