A long-running case reached its conclusion this week when the Supreme Court delivered its judgment in the matter of Tomasz Zalewski v An Adjudication Officer and Others. The decision is a welcome one as it restores certainty around the legal status and functioning of the Workplace Relations Commission (WRC). However, it does have potentially serious ramifications as to how WRC hearings will be conducted in future.
Background
Mr Zalewski initially made unfair dismissal and non-payment of wages claims in the WRC against his former employer in 2016. Following a brief first hearing of the matter, the adjudication officer adjourned the case. The WRC then issued a notification to Mr Zalewski’s legal representative confirming the date and time of the second day of hearing. When Mr Zalewski and his solicitor arrived for the second day of hearing, the adjudication officer notified them outside the hearing room that she had already made and issued her decision on the matter and that the invite to a further hearing was simply an administrative error.
In early 2017, Mr Zalewski began judicial review proceedings in the High Court seeking to have the adjudication officer’s decision quashed and a declaration that the entire WRC adjudicative process established under the Workplace Relations Act 2015 (the 2015 Act) is unconstitutional.
Administration of Justice
One of the central arguments raised by Mr Zalewski was that the WRC had the power to make judicial decisions in employment disputes (i.e. to administer justice) and that this was unconstitutional as the Irish Constitution specifically sets out that justice can only be administered by courts / judicial bodies.
The Supreme Court carried out a broad examination of this issue and, by majority, concluded that whilst the WRC does engage in the administration of justice, it does so in a limited manner. Firstly, the WRC can only hear disputes on limited matters set out in the 2015 Act. Secondly, the awards which can be issued (e.g. where the WRC finds that an employee was unfairly dismissed) are capped. Thirdly, a WRC determination can be fully appealed to the Labour Court and a WRC determination is only enforceable where the employee brings an enforcement action to the District Court. Finally, WRC hearings can be subjected to a judicial review.
Justice O’Donnell concluded that “In my view, when these matters are considered cumulatively, I would conclude that the WRC is exercising limited powers and functions of judicial nature, which … does not, therefore, offend the Constitution.”
The judgment did not end on that point, however. The Supreme Court ruling will have a big impact on certain aspects of how a WRC case is run going forward.
WRC hearings behind closed doors
The first major impact relates to a provision in the 2015 Act that is effectively a blanket ban on WRC hearings being heard in public. The Supreme Court declared that “the requirement for a public hearing … has been regarded as fundamental to the administration of justice” and therefore this blanket ban is now removed on the basis that it is unconstitutional. It was concluded that this blanket ban is now removed and WRC hearings before an adjudication officer may now be conducted in public.
Evidence under oath
The 2015 Act is also silent on whether witnesses are required to give evidence on oath. The Supreme Court declared that the absence of a specific provision allowing an adjudication officer to require certain evidence be given on oath is inconsistent with the Constitution. This opens up the possibility of future criminal prosecution for any witness who provides false evidence before the WRC (i.e. perjury).
Conclusion
It is important for employers to be aware that employment disputes can and will continue to be heard by the WRC. Whilst certain aspects of the WRC’s processes were considered unconstitutional, the Supreme Court specifically noted that this conclusion has no impact on past WRC decisions and does not necessarily preclude the WRC from hearing any current or future cases. However, WRC proceedings will need to be cognisant of these conclusions and the 2015 Act will no doubt be amended to rectify the issues raised.
Importantly for employers and for employees, more hearings will be conducted in public in future, which will mean the names of parties will be made public, and there will be an increased focus on whether certain evidence must be given under oath.
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