The use of Stenographers in WRC Proceedings

Introduction

The use of stenographers in Workplace Relations Commission (WRC) proceedings is quite rare. However, the use of stenographers came under some public scrutiny recently on foot of a case brought by Ms Ammi Burke against her former employer, Arthur Cox LLP (Ammi Burke -v- Arthur Cox LLP ADJ00026883). Ms Burke had brought a claim of unfair dismissal against Arthur Cox initially arguing that how she was dismissed was devoid of any due process or fair procedure.

On foot of constant interruptions from family members of Ms Burke, proceedings were brought to a close by the Adjudication Officer, Mr Kevin Baneham.

Ms Burke later brought judicial review proceedings against the WRC, contesting how her complaint was managed. Ms Burke also complained about Arthur Cox’s hiring of a stenographer service which she described as a “private arrangement” and the Court's use of the transcripts from those proceedings, in her civil case.

In this article, we look at the use of stenographers in WRC and Labour Court proceedings. 

History and Guidelines

Before the establishment of the WRC, there existed an Employment Appeals Tribunal (EAT). The EAT produced ‘Guidelines for Employees, Employers and Practitioners Appearing Before the Employment Appeals Tribunal’ which noted the use of stenographers.

The guidance set out that “stenographers can be used at EAT hearings. On the day of the hearing, the party using a stenographer should inform the Tribunal that they intend using a stenographer.”

In Jacek Przesmycki -v- Thomas Farrell & Sons (Garage) Limited T/A Tramore Service Station (UD1066/2012, MN688/2012) the EAT noted that “the Tribunal’s Notes are the Official record of the proceedings. Should the Respondent wish to have a verbatim record of the proceedings before the Tribunal he will be permitted to use the services of an Official stenographer.”

In Employee -v- Employer (UD1690/2011, MN1749/2011) the EAT noted that “the respondent engaged stenographer services for the interviews so the Tribunal has had every opportunity to know how the interview and disciplinary process went. The Tribunal notes that the claimant was not allowed legal representation though this fact is denied and this is seen by the Tribunal as having been unreasonably withheld in circumstances where gross misconduct which could lead to dismissal was what was being investigated.”

From this case, it is very clear that the WRC and Labour Court have inherent jurisdiction to review transcripts provided by an official stenographer before making a determination, according to the ordinary rules of evidence. It is also clear that, as effective successors to the EAT, they also have capacity to permit the use of stenographers at hearings. 

In David Mahon -v- Noyeks Limited (MN549/2004), concerning the use of a stenographer, it was noted that “the Tribunal agreed to a stenographer being present at the hearing provided that both parties accept that the official record of the Tribunal was the one taken by the Secretary to the Tribunal. Both parties accepted these terms.”

Use of Stenographers before the Labour Court

The issue of whether a party to proceedings is permitted to record those proceedings was addressed by the Labour Court in Bord Gais Eireann T/a Brookfield Renewable (Irl) Holdings Ltd - And - Jaroslaw Obuszko (EDA1623) after the complainant requested authority to do so. The Labour Court denied that request, arguing that any electronic recording would be open to unauthorised editing but did offer the complainant the opportunity to avail of a stenographer but decided not to do so.

“The Complainant submitted a very large volume of material to the Court outlining details of grievances with the Respondent, dating back to 2008. Included in this was a CD which, the Complainant stated, contained recordings of various meeting with the Respondents representatives. This was returned to him as it was not accepted as a reliable form of evidence to the Court. The Complainant also sought permission to record the Court proceedings. This was denied as the Court is of the view that such recordings were open to editing. He was informed that he could have a stenographer present if he wished but he decided not to avail of that opportunity.”

Use of Stenographers before the WRC

In the ‘Consultation Paper on Remote Hearing and Written Submissions’ published by the WRC, it is noted that “the WRC does not currently record its hearings or permit any of the parties to do so save in those circumstances where a professional stenographer and/or recognised recording company have been permitted to record proceedings. Any solution developed in terms of remote hearings must comply with the statutory requirements and comply with the General Data Protection Regulations.”

A pressing case concerning the use of stenographers arose in Technical Records Assistant -v- An Airline (ADJ-00015400), wherein several complaints had been brought by a Hungarian national who worked as a technical records assistant with the respondent, arguing that she had been unfairly treated due to her gender and race. The respondent presented their case but decided to exit proceedings, having set out a number of preliminary matters. The respondent asked that their hired stenographer should be allowed to stay in the room and take notes in their absence. The Adjudication Officer noted that a party to such proceedings was entitled to avail of a stenographer. However, it was incumbent that the relevant party participate in those proceedings. This raises the question, of whether on foot of the Zalewski decision which noted that WRC proceedings are ordinarily to be public in nature, the extent to which members of the public, or any other interested parties, are permitted to take notes of or evidence WRC proceedings.

There was only one reference to a stenographer in the decision of Ammi Burke -v- Arthur Cox, which notes that a stenographer was permitted to attend. It was later suggested that a copy of the stenographer’s report would be made available to Ms Burke if she agreed to contribute to those stenography fees. However, if a party to proceedings wishes to introduce a stenographer’s report into proceedings, then the rules of the WRC require that, ordinarily, any documentation submitted by one party is automatically shared with the other, unless there are compelling reasons not to do so. 

On that note, we highlight the reasoning set out in respect of the complainant’s query as to why a stenographer was present in Gary Powell v C&F Tooling Limited (ADJ-00028134) wherein it was noted in the final decision that “in response to the complainant’s query as to why a stenographer was present, the respondent submitted that the complainant is under oath/affirmation and because there is a personal injuries claim pending, the respondent requires a record and it would be for the judge deciding on the personal injuries claim to decide on admitting the transcript into evidence. The respondent submitted that a stenographer is permitted in the Labour Court and in response to a request by the complainant for a copy of the stenographer’s transcript, the respondent responded that the complainant could have a copy if they paid for same. The complainant submitted that as a copy of the transcript which would be sent to the adjudicator, and in line with normal procedures a copy of such correspondence would be issued to parties, the complainant would receive a copy in that manner. There was no objection from the respondent and the hearing then proceeded.”

Conclusion 

It is clear that when and employer has utilized the services of a stenographer during an internal process, any transcripts produced, can be used in evidence before the WRC or the Labour Court. 

It also appears to be permissible, for either party to those proceedings, to procure a stenographer for their records of the proceedings. 

However, if those records or transcripts scripts are entered into evidence, ordinarily, the WCR or Labour Court should share that documentation with the other side.