In a significant ruling, the Supreme Court has found elements of the operations of the Workplace Relations Commission unconstitutional, but has held back from striking down the legislation underpinning the State’s dispute resolution body.
The case taken by Tomasz Zalewski against a WRC adjudication officer, the WRC, Ireland and the Attorney General challenged the constitutionality of the procedures introduced when dispute resolution bodies were streamlined under the Workplace Relations Act 2015.
The case originated in 2016, when Mr Zalewski took an unfair dismissal case against his employer Buywise Discount Store Ltd.
However, the WRC adjudication officer dismissed his case based on preliminary written submissions without allowing a full hearing to be held including cross-examination of witnesses.
The Supreme Court described these events as “startling, indeed calamitous” as well as “both extraordinary and inexplicable”. The WRC admitted that this was an error.
However, Mr Zalewski also challenged the constitutionality of the general WRC procedures laid out in the 2015 Act.
In his challenge, the Supreme Court had to decide whether the WRC process amounted to the administration of justice – required under the Constitution to be administered in courts – and whether the statutory framework adequately vindicated a claimant’s rights under the Constitution and the European Convention on Human Rights.
In the High Court, Mr Justice Simons had found that the activities of the WRC did not constitute the administration of justice, due to the requirement of enforcement through the District Court.
In today’s Supreme Court ruling, Mr Justice O’Donnell reversed the Simons’ decision, ruling that the activities of the WRC and the Labour Court did constitute the administration of justice, as permitted under Article 37 of the Constitution.
“It is, in my view, clear that justice may be administered by bodies which are not courts, and by persons other than judges in non-criminal cases,” he ruled.
However, the Supreme Court found that a blanket provision that all WRC hearings must be held “otherwise than in public” was repugnant to the Constitution.
“The effect is that the prohibition on public hearings is removed, and proceedings may, but not must, be heard in public,” he ruled.
Mr Justice O’Donnell also criticised the lack of provision for the administration of an oath in WRC hearings.
“It should be said that the significance of evidence on oath is not because of any importance attached to the procedure itself, but because it triggers the power to punish for false evidence, and thus provides an incentive to truthful testimony.
“I consider that the absence of at least a capacity to allow the adjudication officer to require that certain evidence is given on oath is inconsistent with the Constitution,” Judge O’Donnell ruled.
He also criticised the lack of an express provision for the right to cross-examine witnesses.
Mr Justice O’Donnell stated, however: “I cannot conclude that the absence of an express reference to the availability of cross-examination in this case renders the Act unconstitutional.”
The Supreme Court also dismissed suggestions that only legally trained people could carry out the duties of the WRC.
Mr Justice O’Donnell indicated he was not criticising the underlying policy of providing a “…cheap, relatively informal and efficient decision-making function … I would reject unhesitatingly the contention that such a body must be staffed by people with formal legal training and sufficient legal experience to be appointed judges.”
However, later in the judgment he writes: “…if the policy of informality and the rejection of expensive and potentially cumbersome legal procedures becomes a rejection of the law and those features of procedure necessary for a fair determination, then there is an unavoidable, and fatal, clash.”
Mr Justice O’Donnell stresses that the features which he considers repugnant to the constitution – blanket private hearings and the lack of provision to take evidence on oath – are not “inevitable or central” to the operation of the 2015 Act.
“It would in my view be inappropriate to declare the statute as a whole unconstitutional because it does not make provision for this, particularly because, in many cases, an adjudication officer may properly decide that such a requirement is not necessary.”
Mr Justice O’Donnell’s judgment was supported by Justice Clarke, Justice Dunne and Justice O’Malley – with Justice Charleton, Justice MacMenamin and Justice McKechnie dissenting.
The dissenting judgments said that the determinations allowed for under the 2015 act by adjudication officers was unconstitutional and should be struck down.
Mr Justice Charleton, who was critical of the WRC’s treatment of Mr Zaleswki, said that a full appeal to a court from an administrative body has been abolished by the 2015 Act in favour of private hearings by administrators.
Justice is about the truth coming out, he said.
In his appeal, Mr Zalewski, whose complaint of unfair dismissal was rejected by an adjudication officer, argued the process involves the administration of justice and was therefore unconstitutional.
The court heard that he brought judicial review proceedings arising out of his summary dismissal from his job at Costcutter [Buywise Discount Store Ltd] where he had worked between 2012 and 2016.
The matter went before an adjudications officer at the Workplace Relations Commission, which made certain findings. Those findings were overturned after leave was granted in judicial proceedings he took against the WRC.
However, the constitutional aspect of his action proceeded to be heard and determined by the High Court. Its findings were then appealed to the Supreme Court.
The State, which opposed the appeal, accepted the treatment of Mr Zaleswki’s complaint breached his fair procedure rights but disputed that the overall process amounted to an unconstitutional administration of justice.
Mr Zalewski, North Strand Road, Dublin 3, represented by Peter Ward SC and Cian Ferriter SC, had argued the procedures under the 2015 Act for dealing with unfair dismissal claims, and claims for payment in lieu of notice, amount to the “administration of justice” under Article 34 of the Constitution and were thus properly reserved for judges.
The 2015 Act was introduced after abolition of the previous Employment Appeals Tribunal system for adjudicating claims under the Unfair Dismissal and Payment of Wages Acts.
Today’s judgment was delivered electronically and the Supreme Court will deal with any issue arising out of its decision later this month.
In a statement, the from Department of Enterprise, Trade and Employment said it “is considering the matter in detail”.
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