The Irish Supreme Court in Zalewski v Adjudication Officer has rejected a number of arguments challenging the constitutionality of the Workplace Relations Act 2015 ("2015 Act") and related legislation.
However, Adjudication Officers ("AOs") and members of the Labour Court are deemed to engage in the administration of justice. In this context, the Supreme Court held that certain aspects of the procedures operated by the Workplace Relations Commission ("WRC") do not adequately protect the constitutional rights of parties seeking redress and are unconstitutional.
Immediate changes have been made to the WRC's procedures as a result of this decision, with further changes due to be introduced by emergency legislation. In the meantime, WRC hearings will generally be heard in public and the names of parties will no longer be anonymised. Where there is a conflict of evidence between the parties, hearings will be adjourned pending amendments to the 2015 Act which would empower Adjudication Officers ("AOs") to administer an oath or affirmation and to provide punishment for giving false evidence. These changes do not apply to industrial relations disputes, which are non-justiciable and will continue to be heard in public, or to mediations, which are confidential to the parties.
The employee, Mr Zalewski, brought a claim to the WRC for unfair dismissal and minimum notice entitlements. There were several conflicts of evidence between the parties.
A hearing was scheduled and subsequently adjourned as a key witness was not available to give evidence. Both parties were informed of a new hearing date. However, when both parties attended the WRC for the new hearing date, they were informed that a decision had already been made that Mr Zalewski's case was not well-founded despite no hearing ever having taken place. This decision was subsequently overturned by the High Court following a judicial review application which also returned the case to the WRC.
Mr Zalewski sought and was given leave to appeal the High Court ruling to the Supreme Court, as the issues were considered a matter of public importance. The constitutional challenge was based on Article 34 of the Irish Constitution, which provides that the administration of justice shall only take place in Courts established by law and presided over by Judges. In particular, Mr Zalewski challenged the following aspects of the WRC's procedures:
- AOs are not required to have a legal qualification or experience and neither are persons hearing the appeal in the Labour Court;
- there is no mechanism for an AO to require evidence to be given under oath or affirmation and there is no criminal sanction for a person who provides false evidence;
- there is no express right to cross-examine witnesses; and
- hearings are held in private.
Supreme Court decision
The majority judgment was delivered by Mr Justice O'Donnell. He upheld the constitutionality of the WRC on the basis that, while it does administer justice, Article 37 of the Constitution permits the exercise of some functions and powers by bodies other than Courts presided over by judges.
For this reason, O'Donnell J held that it was not necessary for AOs to have a legal qualification. It was also noted that the policy underlying the 2015 Act is to provide a cheap, relatively informal, and efficient decision-making function, staffed by persons with expertise in the areas of employment law and with practical experience in industrial relations.
O'Donnell J held the possibility of requiring evidence to be given under oath and the possibility of prosecution for false evidence, are important for ensuring that justice is done in cases where there is serious and direct conflict of evidence. Therefore, the lack of any such mechanism for the WRC was inconsistent with the Constitution.
The right to cross-examine witness evidence to vindicate a person's right to fair procedures under the Constitution was emphasised by O'Donnell J. However, he did not find that the absence of an express right to cross-examine in the 2015 Act rendered the WRC unconstitutional and noted that the WRC's Guidance Note for a WRC Adjudication Hearing ("Guidance Note") expressly refers to a party's right to question and cross-examine a witness.
Lastly, O'Donnell J held that a blanket prohibition on hearings in public was inconsistent with the Constitution. However, it was acknowledged that not all hearings must be held in public.
Two minority judgments have been published, by Mr Justice MacMenamin and Mr Justice Charleton.
MacMenamin J was critical of the WRC's handling of Mr Zalewski's unfair dismissal claim and its lack of an explanation for how errors had occurred. He agreed that the function of the WRC involves the administration of justice. However, he did not consider the WRC to be "saved" by Article 37 which permits the exercise of limited functions and powers by bodies other than Courts. He held that Mr Zalewski was entitled to the "full range of Re Haughey principles" (ie the full range of fair procedures) and, therefore, Mr Zalewski was constitutionally entitled to the four procedural aspects that were not provided for in the 2015 Act. On that basis, MacMenamin J held that the procedures provided for in the 2015 Act were repugnant to the Constitution.
Charleton J agreed that the WRC administers justice under Article 34. He also held that the WRC's functions in an unfair dismissal case could not be said to be "limited functions" permitted under Article 37. This was due to the very far-reaching consequences that arise where an employee's livelihood is at stake which could not be said to be a technical or administrative matter. He was critical of the lack of an appeal mechanism to the courts, remarking that by not allowing any judicial determination even by way of an appeal on an unfair dismissal case, the 2015 Act "completely deprives a justiciable controversy of a judicial determination".
The majority judgments declined to declare the 2015 Act unconstitutional and, as a result, the WRC will continue to be the main forum for employment law disputes.
Section 41(13) of the 2015 Act, together with s.8(6) of the Unfair Dismissals Acts, 1977 to 2015, which require hearings to be held in private were declared to be unconstitutional.
Those sections require relevant proceedings to be conducted in private and, for the reasons set out in the judgments of the Court, are inconsistent with the Constitution by virtue of removing the possibility, in appropriate cases, of a public hearing.
The 2015 Act was also held to be inconsistent with the Constitution insofar as it fails to provide a mechanism for the taking of evidence on oath or affirmation and for the imposition of a sanction for providing false evidence.
Since the Supreme Court's decision, the WRC has published a notification of procedural changes for hearings, which is available here
The WRC's mediation and trade dispute resolution services remain unaffected. The WRC's notice provides that:
- the majority of WRC hearings must now be heard in public and members of the public and media will be permitted to attend. As WRC hearings are currently being heard remotely due to restrictions imposed to combat the spread of COVID-19 infections, interested members of the public and media may request to attend remotely and receive an invitation to the video conferencing facility;
- all decisions must now name the parties in respect of cases concluded after 6 April 2021. This is a significant change from the previous system which anonymised the names of parties except in the case of Labour Court appeals or claims under equality legislation. Employers should be aware that there will now be a potential reputational risk where employees issue claims to the WRC;
- in cases where the AO determines that there is a serious and direct conflict of evidence, the hearing will be adjourned pending the introduction of legislation requiring evidence to be provided on oath or affirmation and the possibility of the imposition of a sanction where false evidence is provided;
- cross-examination is already possible within the WRC's existing procedures, as reflected in its Guidance Note; and
- the WRC will issue updated guidelines reflecting the above changes and including the existing right to cross-examine witnesses.
Key Takeaway for Employers
Many WRC hearings are likely to be adjourned until legislation is commenced to address the implications of this decision. This may have an impact on the level of compensation awarded where awards are based on loss of earnings. A return to public hearings and the naming of parties to employment disputes is also likely to influence employment law compliance, decision-making, settlement negotiations, and the approach to employment litigation
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.