Damien English (Meath West, Fine Gael) | Oireachtas source

I thank Deputy O'Reilly for tabling these amendments. I understand what she is trying to achieve. I will try to give her words of comfort. We believe that most of what she is asking for is already in the legislation. I will outline the reasons for that belief. I understand the Deputy's concerns but I remind the House that this is a two-way street and that employers might not want their situations discussed in public either. That might encourage them to enter into mediation or to rectify the situation, so this works both ways. There should be no chilling effect on any employee. Our justice system is there to make sure people's rights are pursued and they feel they have the right to justice. They should not be afraid of any chilling effect. I understand why people may think that but they are entitled, if wronged, to have that wrong righted. That is what our justice system is about and what it should be about. I would not want to discourage anybody from trying to pursue his or her rights, and I think any fair-minded employer would assess a situation and see when a person is pursuing his or her rights after being treated poorly by a previous employer.

I checked the point about googling to make sure it is not as simple as that. If somebody wants to investigate whether a potential employee has had a case before the WRC, he or she will not be able to get that information from Google but will have to go into the WRC records and onto its website and pursue the matter there, so it will not be too simple. We could look at that because it should not be as simple as that.

In general, the issue we have is that the Supreme Court has been very clear that the administration of justice must be done in public. We have to allow for that as well as allowing for some exceptions and making exemptions to that rule. Such exemptions are subject to special circumstances such as cases involving a minor, a sensitive health or other social matter, sexual harassment or protected disclosures. These amendments would permit objections to be made to the proceedings being held in public by one party. We believe, however, that sections 4, 7, 9 and 10 already provide that either party can make an application to the adjudicator. They also provide the adjudicator with discretion. That is the key part. The adjudicator, who is the judge in this case, will have discretion to inquire into the matter on his or her own motion and, subsequently, to direct that either the whole or part of the relevant proceedings can take place otherwise than in public where this would be desirable in light of the nature of the circumstances of the special case. The employee coming forward with a concern about an employer can ask but the adjudicator can decide. Not everybody, as Deputy O'Reilly says, comes into these situations having full knowledge of the consequences of a public hearing or what might happen. The adjudicator, a person well experienced in these situations, can make that call or that suggestion for the employee. That is allowed for in this legislation. I hope that gives the Deputy some comfort. I trust the adjudicator will be in a position to do that. In making any such decision, the adjudicator must afford both parties an opportunity to be heard and provide reasons for the decision. That has to happen under law and under fair and proper procedures.

As for a proposal for an appeal of an adjudicator's decision to the director general of the WRC, as the director general will have already delegated a complaint to an adjudication officer, who, as I said, will have been put in charge of the case as the judge, it would be inappropriate for an appeal relating to such a matter to be referred back to the delegator or chairperson. The case is given to the adjudicator. He or she becomes the judge, hears everything and is best placed to make the decision. If you go back to the chairperson of the WRC, he or she will not have heard the case or the evidence and might not be in the best position to oversee an appeal, but there is an appeal mechanism allowed for. Every decision of the adjudication officer on an employment rights case can be appealed to the Labour Court or through a judicial review. That is not ideal, but the Labour Court is there and that is what it is there for, so there is an appeal mechanism in place.

There was the suggestion at the committee that we put in place a review clause after 12 months. We will watch, track and measure this and keep an eye on it. If the Deputy is concerned down the line, we can come back to it. We will make regulations and guidelines to go with this. I would be very happy to sit down with the Deputy at that stage to make sure we have all the i's dotted and the t's crossed in order that when we publish the regulations and guidelines, the adjudicator is given very clear guidance as to what we expect in these situations. However, because of the Supreme Court decision and request that this be very clearly in public as the fallback position, we believe we cannot accept the Deputy's amendments in full. We do believe, however, that most of the suggestions in her amendments are dealt with in the legislation as it stands.

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