Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24

The recent Supreme Court decision in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 has resulted in considerable changes in how employment disputes are determined in the Workplace Relations Commission (“the WRC”).

Background

The Plaintiff was employed by Buywise Discount Store Limited and was dismissed from his position as a security guard and supervisor. Following his dismissal, Mr Zalewski brought Unfair Dismissal and a claim for payment in lieu of notice to the WRC. The parties attended a hearing and the Adjudicator accepted written submissions and documentation.  The matter was adjourned because the employer sought the attendance of a witness on their behalf. Another date was scheduled but when the parties attended, they were told it had been scheduled in error and that the Adjudicating Officer had already decided the matter in favour of the Respondent, based upon preliminary written submissions.

Mr Zalewski lodged an appeal to the Labour Court and simultaneously initiated judicial review proceedings before the High Court seeking to quash the Adjudicator’s decision and sought a number of reliefs including a challenge to the constitutionality of the process established under the Workplace Relations Act 2015.

The High Court upheld the constitutionality of the WRC. The case was subsequently appealed to the Supreme Court.

Supreme Court Decision

In the Supreme Court it was held that both the WRC and the Labour Court carry out the administration of justice. Article 37 of the Constitution permits bodies, other than courts, to exercise “limited functions and powers of a judicial nature, in matters other than criminal matters”.

The appellant argued that section 41(13) of the 2015 Act was unconstitutional because under the Act the proceedings heard before an adjudication officer cannot be in public and any decision was anonymised.  He further argued that the fact the 2015 Act has no provision for evidence to be given on oath and no penalty for giving false evidence is inconsistent with the Constitution.

The Court found that there was no justification for the blanket prohibition on WRC hearings being held in public. Secondly, the court found that the absence of the provision for the administration of an oath or any possibility of punishment for giving false evidence is inconsistent with the Constitution.

Effects of Zalewski on the WRC

Following the decision, in April 2021 the following procedural changes have been introduced to the operation of the WRC pending enactment of updated legislation:

1. WRC hearings are now open to the public and parties involved in the proceedings and decisions will not be anonymised. This does not include some complaints under the Industrial Relations Act 1969. The change also applies to cases lodged before the Supreme Court decision (being the 06 April 2021).
2. At present hearings are being held remotely but a member of the public or media may request a link to a hearing. The Adjudicator may limit the number of participants if it may effect the IT connection.
3. Decisions issued on complaints that had their final hearing before the 06 April 2021 will still be anonymised.
4. If an Adjudication Officer decides that there is a direct conflict of evidence before the WRC, the hearing will be adjourned until the appropriate legislation is enacted to allow an Adjudication Officer to Administer an Oath or Affirmation and provide for penalties for the giving of false evidence.
5. In the case of hearings under the Redundancy Payments Act 1967 the WRC has the power to administer oaths, therefore even where there is a direct conflict of evidence those cases can proceed.

Conclusion

The impact of this decision has considerable implications for administrative, adjudicative and regulatory bodies who exercise quasi-judicial powers, in particular if those matters are decided in private or contested facts are not addressed through evidence given under oath.  Based on the Court’s judgment, such bodies may also be considered to be administering justice and subject to the same constitutional issues identified in the case of the WRC.

This decision also has a knock-on effect on employers as hearings are now in public.  Employers may be cautious regarding adverse publicity and reputational repercussions for those involved in WRC proceedings. The new changes may also give rise to additional costs in WRC proceedings, if they become longer and more formal than the current system.

Provision for hearings to be in public, the administration of an Oath or Affirmation for witnesses and a penalty for giving false evidence is currently before the Seanad in The Workplace Relations (Miscellaneous Amendments) Bill 2021.

About the author: Emer Murphy, Senior Associate on the Employment Team.