Irish Supreme Court rejects challenge to constitutionality of Workplace Relations Commission

In a 4-3 majority, the Irish Supreme Court has rejected a challenge to the constitutionality of the procedures of the Workplace Relations Commission (WRC) in determining workplace disputes. The Court found operational elements of the WRC unconstitutional, but refrained from striking down the underpinning legislation.

The applicant, Tomasz Zalewski, made a complaint to the WRC in 2016 claiming he was unfairly dismissed from his position as assistant manager with a local Costcutter shop and non-payment of wages in lieu of notice. The hearing before the adjudication officer in the WRC took only 10 minutes and was based on written submissions, giving no opportunity for oral evidence or cross examination. The adjudication officer found in favour of his employer.

Mr Zalewski filed judicial review proceedings maintaining that the Workplace Relations Act 2015 is unconstitutional as, under Article 34 of the Constitution, only judges and courts can administer justice. He was given leave in the High Court in February 2017, when the WRC conceded the officer’s decision should be quashed because of an “administrative error”. As a result of the concession, the Supreme Court overturned a finding by the High Court that Mr Zalewski lacked legal standing to continue his constitutional challenge. The case was returned to the High Court where Mr Justice Garrett Simons decided that the WRC was not administering justice as it was unable to enforce its decisions.

The Supreme Court disagreed on this point, finding that the WRC was involved in the administration of justice, however it held that it was only exercising limited jurisdiction in a manner permitted by under Article 37. Delivering the majority judgement, Mr Justice Donal O’Donnell emphasised that the decision of a WRC adjudication officer is limited to employment law issues and can be appealed to the Labour Court and then to the High Court.

Justice O’Donnell acknowledged that the questions raised by Mr Zalewski were justified and some aspects of its procedures were unconstitutional, including the "blanket ban" on public hearings. He stated that “Article 34.1 makes clear that public hearings are of the essence of the administration of justice” and that the “effect is that the prohibition on public hearings is removed, and proceedings may, but not must, be heard in public”.

Mr Justice O'Donnell also criticised the absence of a requirement to give evidence on oath and the lack of a specific reference in the legislation to a right to cross-examine anyone giving evidence. He stated that 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.”

However, he noted that the WRC’s own guide to procedures allows for cross-examination and said the legislation’s failure to expressly include this did not render it unlawful. Ultimately, these elements combined were not "inevitable or central" to the operation of the 2015 Act and it was deemed inappropriate to declare the legislation unconstitutional.

The Supreme Court also dismissed suggestions that only legally trained people could carry out the duties of the WRC.

Mr Justice William McKechnie, Mr Justice Peter Charleton and Mr Justice John MacMenamin disagreed with the majority verdict. Justice MacMenamin’s argued that the powers given to the WRC are too broad to be considered “limited” under Article 37.

Click here, here and here for the Supreme Court decisions.

Click here, here and here for previous PILA Bulletin articles on the Zalewski case.





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