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Constitutional Challenge of the Workplace Relations Commission dismissed by the High Court

Zalewski v Workplace Relations Commission [2010] IEHC 178

Factual Background

In April 2016, the Applicant had been dismissed from his position as a supervisor of a convenience store by his former employer. The Applicant instituted claims for unfair dismissal and for payment in lieu of notice to the Workplace Relations Commission (“WRC”). At the scheduled hearing on the 26th October 2016, which lasted only a few minutes, an adjournment application was made on behalf of the employer. The hearing was ultimately scheduled for the 13th December. As stated by Mr Justice Simons “Events then took what can only be described as a bizarre turn”. On attending for the hearing on the 13th December, parties were informed that a decision had already been issued, which also bore the date of the 16th December 2016, without the oral hearing having taken place.

The Applicant submitted that the only credible explanation was that decisions were routinely issued in such a formulaic manner on consideration of the written submission only and without oral evidence. The Applicant initially sought leave to bring judicial review proceedings, which was refused by the High Court, however on appeal, the Supreme Court granted leave and the matter was remitted to the High Court to hear the substantive matter.

Decision of the High Court

The principal issue for determination by Mr Justice Simons was whether the procedural mechanisms of the WRC, established under the Workplace Relations Act 2015 (“the Act”), involve the administration of justice within the meaning of Article 34 of the Constitution. It was argued by Mr Peter Ward S.C., Counsel for the Applicant, that the Act is invalid in circumstances where it purported to confer decision-making functions upon a non-judicial body, namely, adjudication officers and the alleged invalidity is said to extend equally to the body designated to hear appeals from the adjudication officers, namely, the Labour Court. As such, it is in breach of the constitutional rule under Article 34 that only the courts, with limited exceptions, may administer justice. 

The alternative argument of the Applicant was that several of the statutory procedures of the WRC were deficient in vindicating the Applicant’s constitutional rights. Specifically, lack of legal qualifications required to be appointed as an adjudication officer, there was no provision for taking evidence under oath, there was no express right to cross examine and that hearings of the WRC take place in private, as opposed to the administration of justice in public, being a constitutional provision.

In rejecting the arguments of the Applicant, Mr Justice Simons gave a very detailed judgment on the 21st April 2020.

Having regard to the primary argument, that the WRC unlawfully carries out the administration of justice, the High Court held that while having many features and attributes of a court, it lacked one essential and determining feature, that of the ability to enforce its own decision. The enforcement of decision of the WRC can only be procured through an application to the District Court. When a party seeks an order of enforcement for reinstatement or re-engagement before the District Court under the Unfair Dismissals legislation, the District Court has the power to modify the form of redress by ordering compensation instead, thus allowing the District Court to overrule the decision of the WRC. Mr Justice Simons stated that this provision effectively acts as a “significant curtailment of the decision-making powers” of the WRC. It cannot therefore be said that the adjudication officer of the WRC or indeed the Labour Court were carrying out the administration of justice. Mr Justice Simons did indicate his reluctance on making this finding.

The alternative argument of the Applicant pointed to the alleged deficiencies in the prescribed procedures of the WRC under the Act, effectively infringing his personal constitutional rights. The High Court responded to each of the four complaints.

1. Legal Qualifications

In order to be appointed as an Adjudication Office of the WRC, there is no requirement to have a legal qualification or indeed legal experience. The Court found that as the officers of the WRC were not carrying out a judicial function then it was reasonable that a legal qualification was not required. Simons J stated “that it is not possible for the court to determine, as a matter of fact, that the absence of a statutory requirement that an adjudication officer hold a legal qualification has resulted in a systemic failure in the hearing and adjudication of claims.” No practical examples of alleged incompetence or details of the qualifications of the adjudicating officer were provided to the Court. The High Court ignored the contents of the Affidavits of experienced employment law counsel and solicitor.

2. No Requirement for Oath or Affirmation

The Applicant submitted, as evidence at the WRC is not taken on oath or affirmation then this points to a procedural deficiency. This was not accepted by the Court as a constitutional requirement but noted that there is an argument to be made that the hearing of evidence on oath would be appropriate in the context of a claim of unfair dismissal.

3. No Express Provision for Cross-Examination

The Applicant argued that the absence of an express provision for the cross-examination of witnesses amounted to a major flaw in the statutory procedures. It was submitted by Mr Ward S.C. that where there are material conflicts of fact, and fundamental rights are involved, then there must be cross-examination. The Court found that while an adjudication officer did not have express power to allow cross examination, there was an implied power to allow same, where necessary, in the circumstances of the case. Where it is not allowed, in the appropriate case, the court noted that it would in principle represent a good ground for judicial review.

4. Right to a Hearing in Public

Finally, the Applicant objected that the proceedings before an adjudication officer are held otherwise than in public and argued this was therefore unconstitutional. Briefly, the Court surmised that it is doubtful that the values which are protected by the constitutional requirement of the administration of justice in public can be “read across” to decision making by non-judicial bodies. The Court also found that any requirement for a public hearing was achieved by the provision governing the appeal to the Labour Court, which is held in public.

The Court also made an order of certiorari that the decision of 16 December 2016 should be set aside (already conceded by the State respondents) and to remit the claims pursuant to the Unfair Dismissals Act 1977 and the Payment of Wages Act 1991 to the WRC to be referred to another adjudication officer for rehearing. These orders have been stayed pending the making of an appeal, if any.

While Mr Justice Simons gave a very detailed judgment on these matters, his decision hangs on the District Court’s function which does not have an appellant function and does not hear from both parties. This seems to me to be a good ground to warrant an appeal, particularly as Mr Justice Simons expressed his reluctance in making this decision.

The arguments put forward by Mr Peter Ward S.C., Counsel for the Applicant were raised by the Employment Law Bar and the Law Society’s Employment Law Committee before the Workplace Relations Act 2015 came into effect but the Minister, Richard Bruton at the time, chose to ignore these concerns at the time, stating that they were raised by “interested parties”. It will be interesting to see if this decision is appealed and whether the judiciary ultimately accept these issues as a breach of the Constitution.  However, at least cross examination can no longer be denied at a WRC hearing where it is necessary to test the evidence.

Link

30th April 2020

Anne O’Connell

Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2

www.aocsolicitors.ie

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