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WORKPLACE RELATIONS COMMISSION ANNUAL REPORT 2021

July 2022

On 1 July 2022, the Workplace Relations Commission (WRC) published its seventh annual report outlining the challenges faced by the WRC in 2021 and the ways in which it worked through the challenges that the global pandemic continued to present.

Concillation, Advisory and Mediation Services (CAM)

The WRC have traditionally relied on face-to- face interaction between the parties to mediation and conciliation. In the report the Director General remarked that “notwithstanding the considerable capacity of virtual platforms to assist in this area it is the WRC’s view that face-to-face interaction, which allows for full interpersonal engagement both by and with parties who are in dispute, is the most effective and ultimately most efficient method of achieving resolution for everyone involved”. It was noted that technical difficulties and variable broadband quality of some attendees was an undesirable burden in the negotiation process. For the reasons outlined above the WRC expressed its intention to return predominantly to face-to-face engagement.

Concillation

According to the report the demand for conciliation services remained the same as it had been in 2020. The number of requests for conciliation services was 689, which was the same as the previous year. However, 95 of these cases were referred to the Labour Court under Section 26(1) of the Industrial Relations Act 1990 where a resolution was not possible at conciliation stage which was slightly higher than the previous year.

Following previous years, pay issues (44%) and organisational structures/hours of work and change in work practices (20%) made up over half of conciliation referrals. Industrial relations issues (24%) also consisted of a significant portion of referrals.

Advisory Services

After a request from An Tánaiste in December 2020, the WRC developed a Code of Practice on the Right to Disconnect from work outside of normal working hours. This came into effect in April 2021. The Code provides best practice and policies to allow for employees to disconnect or disengage from their roles outside of normal working hours. The Code is applicable irrespective of whether an employee is a remote worker, office based or a mobile worker. Although failure to follow a Code composed under Section 20(1)(a) of the Workplace Relations Act, 2015 is not an offence in itself, Section 20(9) of the Act provides that in any proceedings before a Court, the Labour Court or the WRC, a Code of Practice shall be admissible in evidence and any provision of the Code which appears to the court, body or officer concerned to be relevant to any question arising in the proceedings shall be considered in determining that question.

Mediation

The WRC provides two separate mediation services.

Pre-Adjudication Mediation relates to specific disputes referred to the adjudication service. It only occurs where both parties to a dispute have agreed to participate as it depends heavily on the parties’ willingness to resolve the issues. It must also be a dispute which the Director General believes can be resolved by mediation. A total of 1,112 complaints showed both parties were willing to engage in the mediation process during 2021. Of the cases that progressed to mediation the majority (70%) were carried out via telephone, 29% were conducted virtually and just 1% were face-to-face mediations. The number of cases resolved at mediation was 259 which marks a 52% success rate.

During 2021, in cases where agreements were reached using the pre-adjudication mediation process, almost 5% of agreements did not include any financial settlement terms, and of those, over half related to employment equality complaints. 46% of agreements reached in face-to-face mediations included additional non-monetary terms compared to 20% of telephone mediation settlements. In all resolved cases, 46% of complainants were represented and 40% of respondents were represented.

Workplace mediation is a confidential service that is suited to small groups and is provided on an ad-hoc basis. It is most often utilised in situation where there has been a breakdown in a working relationship or other conflicts between colleagues. A total of 56 workplace mediation requests were received during 2021, of which 42 are now closed.

Facilitation

The WRC also took an active role outside what would normally be considered traditional

conciliation and, throughout 2021, facilitated discussions in 273 such engagements. They continued to chair the Health Service National Joint Council, National Negotiating Forum in respect of Technological Universities, the Construction Industry NJIC, the Teachers’ Conciliation Council, the State Industrial NJIC, the Local Authority National JIC and the Irish Prison Service. The WRC also played a role within the Education and Training Board (ETB) structure in their role as Appeals Officers with the ETB Appeals Procedures where its grievance, disciplinary, or bullying and harassment procedures have been initiated. In addition, the Commission chaired the Bord Na Móna Joint Industrial Council (JIRC).

The outreach services provided by the WRC include the delivery of education awareness/training programmes. The focus in 2022, delivering this service, is to progress the development good workplace relations and positive working relationships within the workplace.

Inspection and Enforcement

In addition to its other services the WRC conducts inspections to ensure that employers are complying with their obligations under employment legislation. Inspections are generally carried out sectors where the risk of non-compliance has been identified, were previous non-compliance was detected.

Throughout 2020 there were 4,432 cases completed. 2,722 inspections (61%) were unannounced. 57 joint inspections were carried out with An Garda Síochána and other regulatory bodies of the State. The National Return to Work Safely Protocol and the subsequent Work Safely Protocol were

published to support employers and employees returning to their traditional workplace. Throughout 2021, WRC Inspectors carried out 3,433 inspections to ensure compliance with the protocols and safe workplace practices. In 90% of these inspections, employers were found to be complying with the measures in place.

Adjudication Services

Over the course of 2021 over 5,993 applications were made to the WRC which included 12,014 individual complaints.

Following on from 2020, the majority of specific complaints were in relation to pay (3,009) while complaints related to redundancy dropped to 571 compared to 3,894 the previous year. Discrimination/Equality/Equal Status (1,596) accounted for a significant portion of the complaints received which is 20% higher in this complaints category when compared with 2020. There was a significant increase in complaint referrals under the Equal Status Acts 2000-2015, in that some 572 referrals were made under the Acts, relating to 810 specific grounds compared to 305 referrals in 2020 relating to 452 specific grounds: an annual increase of just under 90% when compared with 2020. Within the overall referrals, there were increases in 7 of the 10 grounds provided for in the legislation. The most notable increases were in Disability (+298%) with 362 referrals, and (+91%) in Family Status, while referrals under the Race ground recorded the second highest referral under the statutory grounds provided, with 85 referrals.

Hearings

Since the introduction of the Workplace Relations (Miscellaneous Provisions) Act 2021 the WRC

has been able to schedule an average of more than 120 hearings each week. Despite the ongoing restrictions and some adjustments arising from the Zalewski judgment of the Supreme Court, a total of 3,320 adjudication hearings were held between 1 January – 31 December 2021. This represented 75% increase on the 1,899 hearings held in 2020. Of these hearings only 90 were conducted in person with the remainder being held remotely.

The WRC received 2,216 postponement requests. While it was expected that the level of objections would decline in 2021 as people became more at ease with the use of virtual platforms this actually represented an increase of 154%. Of the postponements sought, some 1,421 (64%) were granted. Many of these related to requests arising from pre-booked holidays, witnesses’ unavailability, and long-term illness. The WRC plans to review the process in 2022 in conjunction with exploring the possibility of offering parties longer lead-in times to hearings.

 

 

Notable Judgements

On 6 April 2021 the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 identified the legislation governing certain WRC procedures as being inconsistent with the Constitution, namely, the conduct of hearings in private; the absence of a provision for an Adjudication Officer to administer an oath or affirmation; and the absence of a possibility of punishment for giving false evidence. It represented the most significant framework development with regard to the adjudication service of the WRC since its establishment.

The judgment in this landmark constitutional challenge held that both the WRC and the Labour Court carry out the administration of justice. Article 37 of the Constitution permits bodies, other than courts, to exercise “limited functions and powers of a judicial nature, in matters other than criminal matters”.

In terms of the impact, all proceedings before the WRC were paused for a period while the Oireachtas enacted legislation that brought the WRC in line with the requirements fixed by the Supreme Court. The Workplace Relations (Miscellaneous Provisions) Act 2021 was enacted on 22 July 2021. This legislation brought about some significant changes to the adjudication model;

1. proceedings before the Workplace Relations Commission are now held in public;
2. as a consequence of the requirement for hearings to be held in public, parties’ names now appear on the WRC list of upcoming hearings;
3. another important consequence of the ‘public’ requirement, is that WRC decisions are now published with the names of the parties included; and
4. evidence in proceedings before the Workplace Relations Commission should be given on oath.

Another important decision which challenged the latter guidance was Ammi Burke v. An Adjudication Officer and the Workplace Relations Commission and Arthur Cox LLP [2021] IEHC 667. This judicial review matter concerned a challenge to the handling of an unfair dismissal claim by the WRC. Simons J dismissed the review in its entirety and acknowledged the challenge facing the WRC in applying the Supreme Court judgment and that it had endeavoured to apply that Court’s findings in good faith and that this would invariably mean that, in a handful of cases, Adjudication Officers might have to recuse themselves so that a new Adjudication Officer could take over and fairly hear the evidence afresh on oath.

Conclusion

The remit of the WRC Adjudication Service has expanded considerably since its establishment in 2015 and looks set to expand further across 2022. Based on the experience of the last two years, and the considerable capacity of virtual platforms to assist in this area notwithstanding, it is the WRC’s view that face-to-face interaction, which allows for full interpersonal engagement both by and with parties who are in dispute, is the most effective and ultimately most efficient method of achieving resolution for everyone involved. As such, it is the intention of the WRC to carry out most of its conciliation and mediation activity in-person.

This judgment in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] changed fundamentally the adjudicative model from that in existence between 2015 and 2021 to one where the service must act consistent with the full standards expected in a higher court both in terms of processing and hearing complaints.

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