Workplace Relations Commission: Mediation and Adjudication During Covid-19

The Workplace Relations Commission (WRC) has endeavoured to adapt to the situation currently facing Irish employers and employees. With all adjudication hearings, face-to-face conciliations and mediations and on-site inspections cancelled or postponed since 13 March 2020, the WRC has carried out a consultation program with stakeholders to establish a protocol for dealing with complaints during the Covid 19 crisis.

The newly published protocol is effective from 20 May 2020. This update will summarise the guidelines published by the WRC on dealing with complaints in the current climate.

Mediation

In its report on the consultation process, the WRC states that there is still significant demand for use of its mediation services at this time. It states that the mediation service has sufficient capacity to deal with this and will continue to offer mediation by telephone where appropriate. This includes cases where complaints were received within the last two months, where parties have had their hearing dates postponed and even where parties have previously declined offers of mediation, if mediation is now considered suitable.

Written Procedures

The WRC has statutory power under employment legislation to investigate and deal with complaints by way of written procedure. The WRC aims to utilise this where possible in cases where mediation has failed or is not suitable. Where a complaint has been identified as suitable for disposal by way of written submissions by the Director General, the WRC will inform the concerned parties of the statutory right to object. In the interest of fair procedures, complaints will only be handled in this manner where consent from all parties has been provided. Where this is forthcoming, the complaint will be referred to an adjudication officer for determination. Parties will then have 14 days to submit all relevant documents before the adjudication officer proceeds with the investigation.

Where information emerges in the course of the proceedings by way of written submissions that may alter the decision of the Director General to dispose of the complaint in that manner, the matter may be remitted for investigation by hearing.

Virtual Hearings

Following feedback from stakeholders, the WRC is to begin a two week trial from 20 May 2020 of virtual investigations, using the “WebEx’” platform. It is acknowledged that not all parties have access to the requisite IT to enable such hearings and as such, these cases will be afforded priority on the eventual resumption of face-to-face investigations.

Notwithstanding the trial period, from 27 May 2020, with the consent of the parties, the WRC will begin to identify suitable cases for virtual hearings and will schedule the first of these from July onwards. Initially, and in line with the consultation submissions, this process will be targeted at complaints received in relation to the Organisation of Working Time Act, Payment of Wages Act, Industrial Relations Act, etc. However, more complex matters may be heard in the future in this manner, as experience with the system grows.

Where a complaint is deemed suitable for virtual hearing, the WRC will inform the parties and seek written consent within 14 days. Parties will be informed of the minimum device and broadband capabilities required for virtual hearings and will be required to confirm access to same. Parties will be asked to provide, within 21 days of the scheduling of the virtual hearing, written statements from witnesses outlining the evidence they will adduce at hearing.

It should be noted that during the initial phases of the rollout of virtual hearings, parties whose complaints have already been part-heard will not be able to avail of the service. Relevant complaints will be prioritised upon resumption of face-to-face hearings.

Face-to-Face Mediation and Adjudication

In line with Government advices, the WRC proposes to, when possible, re-introduce limited face-to-face mediations and adjudications in large meeting rooms. This will initially be confined to the WRC’s five premises but other suitable locations will be explored.

Points to Note

Although the WRC guidelines are subject to change pending further consultation, the current guidelines are effective immediately. Employers should review existing complaints in line with the new guidelines and consider the application of these alternative procedures. Consideration should be given to the complexity of the matter in deciding the best course of action along with updated Government proposals in the “Roadmap for Re-opening Society” and the “Return to Work Safely Protocols”.

For further information please contact Sarah Conroy or Niamh Loughran.