The Supreme Court in Zalewski v. Adjudication Officer & Ors [2021] IESC 24 (“Zalewski”) held that a Workplace Relations Commission (“WRC”) Adjudication involves ‘the administration of justice.’ As such, these proceedings must be held in public in line with Article 34.1 of the Constitution. This means that members of the public are permitted to attend the hearing and the names of the parties are published.

According to section 4(b) of the Workplace Relations (Miscellaneous Provisions) Act, 2021 an adjudication officer may, following an application from a party to the proceedings or otherwise, due to the existence of ‘special circumstances’, direct that proceedings be conducted in private. This would mean that the identities of the parties to the proceedings would be withheld and the public would be unable to attend the hearing. According to the WRC’s guidance, ‘special circumstances’ may include cases involving:

  • a minor;
  • a person with a disability or medical condition, which they do not wish to be revealed;
  • issues of a sensitive nature such as sexual harassment;
  • a protected disclosure where there's an issue of the disclosure being made in confidence; and
  • a real risk of harm to a party if the hearing is held in public, or if the parties are named in the decision.

The adjudication officer has the exclusive discretion, where ‘special circumstances’ exist, to determine whether there are sufficient grounds for the proceedings to be conducted privately having regard to fair procedures, reputational impact, any mutual agreement between the parties to conduct matters privately and any other material considerations. Parties may indicate their views in advance of the hearing.

Where a hearing takes place in public, a written decision stating party names is issued to both parties and uploaded to the WRC website. A fully or partially anonymised version of the decision may be uploaded where the adjudication officer decides either upon their own motion or following an application from a party to the proceedings, that due to the existence of special circumstances, the decision should be anonymised. Examples of recent matters in which such discretion was applied are outlined below.

A Store Assistant v A Store ADJ-00036809 (De Novo Hearing in ADJ 24958)

The complainant experienced sexual harassment during the course of her employment as a store assistant while working for the respondent, the operator of a supermarket.

Mr F,’ the perpetrator of the harassment, was a colleague of the complainant in a managerial role operating as her supervisor. Initially, both parties were on good terms but from December 2018 Mr F began a pattern of behaviour when he subjected the complainant to harassment of a sexual nature. This included the sending of lewd images by text, inappropriate comments at work and on one occasion exposing himself to the complainant.

The respondent requested that the hearing be held in private given the sensitive nature of the proceedings. This was a de novo hearing as the previous adjudication officer had recused themselves. The replacement adjudication officer agreed to hold the hearing in private as Mr F died in tragic circumstances in April 2021 and still had family working at the respondent’s supermarket. The adjudication officer also agreed to anonymise the names of Mr F and the witnesses despite the complainant’s objections to this.

Bláthnaid Ní Chofaigh v RTÉ

This matter garnered a lot of media attention given the high profile of the parties involved and is due to come before the WRC in June 2022. The hearing will take place in public. However, the alleged perpetrator will remain anonymous on foot of a request from the respondent, RTÉ, during a preliminary hearing. The complainant did not object to this request. In those circumstances, the request was granted by the adjudication officer.

Counsel for RTE also requested that the media refrain from reporting the names of any alleged perpetrators in the event of a ‘slip up’ during the course of the proceedings where their names may be accidently disclosed. Both Counsel for the complainant and most importantly the adjudication officer also agreed to this.

Key Takeaways for Employers

In light of the decision in Zalewski, employers should be mindful that any proceedings which come before the WRC will be held in public by default.

If an employer believes that ‘special circumstances’ exist to warrant the anonymising of certain information, it can make an application for anonymity in advance of the hearing but, the final decision will rest with the adjudication officer.

Please contact Mary Gavin and/or Amy McNicholas of our Employment & Corporate Immigration team on 01 639 3000 should you require any employment law advice.