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Supreme Court’s Decision On The Constitutionality Of The WRC To Have Far Reaching Implications

In Tomasz Zalewski v Adjudication Officer, WRC & Ors the Supreme Court was asked to determine whether or not the Workplace Relations Commission (“WRC”) under the Workplace Relations Act 2015 falls foul of the Irish Constitution and in the alternative whether certain aspects of the WRC procedures were unconstitutional. On 6th April 2021 the Supreme Court decided, by a majority of 4:3, that the WRC is constitutionally valid but certain aspects of its procedures are unconstitutional and require amendments.

Background: The case related to an Unfair Dismissal claim in 2016 which was referred to the High Court by way of judicial review. Judge Simmons reluctantly held of 20th April 2020 that the WRC did not carry out administration of justice, due to the fact that it is not able to enforce its own decisions. He therefore held that the WRC is not in breach of the Constitution.

Click on this link for our article of last year on the High Court decision – Constitutional Challenge of the Workplace Relations Commission dismissed by the High Court

Supreme Court Decision – Much of this case concerned whether the functions of the WRC amounted to an ‘administration of justice’. The importance of this is that Article 34.1 of the Irish Constitution provides that “Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution”.  All of the Supreme Court judgements agreed that the WRC does carry out an administration of justice and overturned the High Court’s decision in this regard.

The differences that occurred in the judgements is whether or not the WRC was saved by Article 37 of the Irish Constitution which permits the exercise of limited function and powers of a judicial nature, in matters other than criminal matters, by any persons or bodies duly authorised by law to exercise such functions and powers, notwithstanding that such persons or bodies are neither judges or courts under the Constitution. The majority held that the WRC was covered by Article 37. This meant that the WRC Adjudication system under the 2015 Act is not itself unconstitutional.

However, Judge O’Donnell, giving the majority decision, stated that “the standard of justice administered under Article 37 cannot be lower or less demanding than the justice administered in courts under Article 34” (paragraph 138). This resulted in the following findings:

–    A blanket prohibition of hearings in public was inconsistent with the Constitution.

–    The absence of the ability to require evidence under oath/affirmation and the possibility of prosecution for false evidence  are important for ensuring that justice is done where there is a conflict of evidence. Therefore, the lack of any such provision 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 is essential. It was held that the absence of this right expressed in the 2015 Act did not render it unconstitutional as the 2015 Act does not preclude this right and the 2015 Act must be applied in line with the Constitution and the right to cross-examination is expressly provided for in the WRC Guidelines. Furthermore, remedy for any denial of such a right is available by reference to the High Court by way of judicial review.

–    The Adjudication Officers do not require to have a legal qualification. However, Judge O’Donnell expressed serious concerns relating to the Minister’s unqualified power of revocation of appointment of adjudication officers in respect of the independence of the adjudication officer, particularly where it is likely that they will be civil servants in the minister’s department. He stated that these matters, including the appointment of those to the Labour Court, “require careful scruting in the of the conclusion of this Court that the functions being performed are functions of a judicial nature involving the administration of justice under the Constitution” (paragraph 147).

The dissenting judgements of Mr Justice McMenaman and Mr Justice Charleton are worth reading in respect of how they felt that the WRC’s functions were not of limited powers under Article 37 particularly in respect of unfair dismissals and that its functions properly fell under Article 34. Charleton J. was also very critical of the lack of a full appeal to the courts.

Consequences: The Supreme Court decision has a number of consequences:

  1. WRC cases, other than under Industrial Relations legislation, are now being heard in public. The list of cases can be found on the Workplace Relations website and as hearings are currently being heard remotely, a member of the public or the media simply needs to email the WRC to request the link to the remote hearing.
  2. All WRC decisions where the hearing is completed after 6 April 2021 will be published with the names of the parties.  This may lead to parties thinking twice about continuing with the hearing and/or reaching a settlement.
  3. Any hearings that involve evidence in dispute will be adjourned on application until the 2015 Act is amended to provide the Adjudication Officer with the ability of administer the oath/affirmation and provide punishment for false evidence. This will increase the backlog of cases to be heard and could increase the potential awards and legal costs. It remains to be seen whether parties may seek a full re-hearing where evidence has already been given in the case but not under oath/affirmation.  
  4. The right of cross-examination will hopefully be applied more consistently.
  5. It will be interesting to see whether the amendments to the 2015 Act address the number of other anomalies highlighted by the Supreme Court including the appointment and removal of adjudication officers and members of the Labour Court and the limited enforcement procedure to the District Court.

Conclusion – While the decision of the Supreme Court has certain immediate consequences  on the conduct of WRC hearings, the fact that the standard of justice to be administered by  the WRC must now be of the same standard an employer or employee would receive in a Court, should result in further changes and potentially a lot more challenges to the High Court by way of judicial review.

Authors – Anne O’Connell & David Murphy

29th April 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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