The Workplace Relations Commission (WRC) and the Labour Court are facing the unprecedented situation of having to drastically adapt their procedures for employment related complaints. This follows the cancellation of all physical adjudication hearings, mediations and conciliations on 13 March 2020 due to COVID-19. To respond to the challenge, the WRC consulted with stakeholders with a view to producing guidelines for dealing with complaints during the crisis. Employers should note that there will be significant changes in terms of how employment related complaints will be managed going forward.

Mediation

The WRC’s Mediation Service has continued to offer mediation by telephone in suitable cases over the past number of months. In addition, it is currently offering mediation to parties whose hearings have been postponed and are awaiting an alternative hearing date. Even in circumstances where parties have previously declined mediation, where suitable, the WRC is strongly encouraging the parties to reconsider mediation as a way to resolve the dispute. In the future, it may request parties to actively consider mediation prior to proceeding to adjudication. The WRC is also exploring the possibility of expanding its telephone based service to virtual mediations by way of video conferencing.

Written procedures

The WRC has indicated that it will avail of its statutory power to investigate complaints by written submissions where possible. Where cases are deemed suitable, the WRC will write to parties and inform them of this procedure. In line with fair procedures, it is possible for parties to object if they do not consent to the complaint being dealt with in this way. Where the parties agree to proceed, the complaint will be referred to an adjudication officer who will evaluate and determine the complaint following submission by the parties of all documentation relevant to the complaint. The WRC has already identified complaints that are suitable for written proceedings and, from 15 June 2020, began corresponding with relevant parties to establish consent. They are urging parties to respond positively to these requests.

Virtual WRC hearings

The WRC commenced a trial of virtual investigations of complaints using remote access technology through the WebEx platform. Following a successful trial, the WRC is now inviting parties to participate in virtual hearings with a view to commencing hearings in early July. The WRC has recognised that not everyone will have access to the necessary technology and, therefore, these complaints will be prioritised once face-to-face hearings resume. The President of the Law Society has also acknowledged the benefits of virtual hearings where parties are willing and able to fully take part in them. However, she has cautioned that these will not be suitable for everyone and appropriate accommodations should be made where possible.

A return to limited face-to-face mediations and adjudication hearings has been confirmed for 20 July and appropriate physical distancing and other facilities will be put in place. The WRC will give listing priority to part heard cases that were previously adjourned. Following the re-commencement of face-to face meetings, parties to complaints will be offered either a face-to-face or a virtual hearing but cannot avail of both in the same claim.

The Labour Court

While physical Labour Court hearings are currently suspended, virtual hearings commenced on 3 June. These hearings have been dealing with relatively straightforward complaints relating to employment rights under the Organisation of Working Time Act, the Payment of Wages Act and the Industrial Relations Act, among others. While we understand that the cases being heard do not involve witnesses at this point, the intention is that these hearings will eventually be run as closely as possible to the normal protocols, with the Chairman managing proceedings and calling witnesses to give evidence, as necessary. The normal timeframes for sending in written submissions and witness statements will still apply in these circumstances.

Subject to public health guidelines, the Court is seeking to recommence face-to-face hearings by late July on a restricted basis. Kevin Foley, Chairman of the Court, expects that in “the medium term, Court hearings will be delivered using a combination of physical court rooms and virtual court rooms.” The number of physical hearings will be impacted in light of the likelihood that the Court will be prevented from travelling to hear complaints in the foreseeable future. Adequate notice will be given to parties prior to these complaints being listed for hearing. Priority is likely to be given to part heard cases or cases that were cancelled or adjourned due the current crisis.

Conclusion

In light of the evolving public health measures and guidance, these arrangements are subject to change and may be updated according to government advice. However, employers should be aware of the current WRC and Labour Court protocols and the impact they will have on existing complaints.

If you would like to discuss the potential impact of this issue on your business, please contact a member of our Employment & Benefits team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.