WRC Hearings Are Usually Public: What Employers Need to Know Before Adjudication
Receiving a Workplace Relations Commission complaint can immediately raise legal, financial and operational concerns for an employer.
There is another consideration which can sometimes be overlooked: the dispute may ultimately be heard in public.
A recent preliminary WRC hearing involving a senior manager and a major Irish employer has brought the issue back into focus after an application to have the proceedings heard privately and the eventual decision anonymised was refused.
The underlying employment claim in that case has not yet been determined. However, the procedural issue provides an important reminder for employers preparing to defend WRC proceedings.
A WRC defence should be prepared on the assumption that the evidence, procedure and decisions being challenged may ultimately be examined in a public forum.
WRC employment and equality hearings are generally public
Since changes introduced following the Supreme Court's decision in Zalewski, WRC hearings involving the administration of justice are generally conducted in public.
This covers most employment rights and employment equality adjudications.
Members of the public may therefore be admitted to a hearing once the Adjudication Officer has determined that the matter is to proceed publicly.
Employers should not assume that a WRC employment dispute will remain a private matter between the business and the employee.
When can a hearing be held in private?
An Adjudication Officer can decide that proceedings should be conducted privately where special circumstances exist.
Examples identified by the WRC include cases involving:
- Minors;
- Sensitive medical information;
- Sexual harassment allegations;
- Certain confidential protected disclosures;
- Legal restrictions on identifying a person;
- International protection applicants; or
- A real risk of harm arising from public identification.
These examples are not exhaustive and each case depends upon its own facts.
Importantly, potential reputational damage to an individual or business does not automatically amount to a special circumstance justifying a private hearing.
The published decision may matter as much as the hearing
Where an employment or equality case proceeds publicly, the written WRC decision will generally identify the parties.
Depending on the issues in dispute, a published decision may contain information concerning:
- The employee's role and remuneration;
- The reasons given for dismissal or disciplinary action;
- Internal correspondence;
- Meeting records;
- Workplace policies;
- Witness evidence;
- Management decision-making; and
- The employer's explanation for the action taken.
The question is not only whether the employer can defend the decision. It is whether the employer can explain the decision clearly when the evidence is scrutinised.
Public adjudication changes the importance of contemporaneous records
A WRC hearing may take place months after the workplace events which created the dispute.
Memories fade. Managers move roles. Employees leave. Emails become difficult to locate.
That is why records created at the time of the decision can be particularly valuable.
Relevant records may include:
- Investigation notes;
- Meeting minutes;
- Grievance or disciplinary correspondence;
- Warnings and performance records;
- Redundancy selection documentation;
- Occupational health material;
- Relevant policies;
- Emails and messages;
- Witness accounts; and
- The written reasoning behind the final decision.
Witness preparation matters too
Employment disputes frequently depend upon the evidence of the managers who investigated, consulted, recommended or made the decision being challenged.
Employers should identify those witnesses early.
They should understand the relevant chronology, be familiar with the records and be capable of explaining the reasoning behind their own decisions.
A carefully drafted written submission cannot replace a key decision-maker who is unable to explain what actually happened.
Prepare the submission before the deadline becomes the strategy
WRC proceedings require preparation well in advance of the hearing.
The employer should understand:
- What statutory complaints have actually been brought;
- What facts are admitted or disputed;
- What legal issues need to be answered;
- What documents support the employer's position;
- Which witnesses are required; and
- Where the weaknesses in the defence may lie.
WRC guidance asks parties to provide submissions and relevant materials in advance of the hearing, with particular importance placed on the period before the final 15 working days.
Hearing preparation should begin when the claim arrives — not when the hearing date starts to feel close.
Public adjudication is not the only route
Depending on the type of complaint and the circumstances, employers may also consider mediation or negotiated resolution.
Adjudication
Usually public.
Evidence may be tested.
The Adjudication Officer determines the outcome.
A written decision is generally published.
WRC Mediation
Confidential.
Voluntary.
The parties control whether agreement is reached.
A settlement can avoid adjudication.
Mediation will not be appropriate or available in every case, and an employer should not settle simply because a hearing may be public.
But confidentiality, legal exposure, management time, cost and the strength of the available evidence can all legitimately form part of an overall dispute strategy.
What should an employer do when a WRC complaint arrives?
Before deciding how to respond:
- Record every response, submission and hearing deadline;
- Identify exactly what claims have been made;
- Preserve relevant documents and correspondence;
- Prepare a clear chronology;
- Review the procedure followed by the employer;
- Identify the decision-makers and potential witnesses;
- Assess the strengths and weaknesses of the defence;
- Consider potential financial and non-financial exposure;
- Consider whether mediation or settlement should be explored; and
- Agree the strategy before substantive submissions are made.
The wider lesson for employers
Public WRC hearings should not cause employers to panic or settle claims that should properly be defended.
They should, however, reinforce the importance of being able to stand over the employment decision being challenged.
A strong WRC defence does not begin on the morning of the hearing. It begins with the workplace process — and continues from the moment the complaint arrives.
Employers facing WRC proceedings should review the claim, evidence, witnesses, procedure and potential exposure early so that the decision to defend, mediate or seek resolution is an informed one.
This article is for general information purposes only and does not constitute legal advice. Specific legal advice should be obtained in relation to individual circumstances.
