The case of Tomasz Zalewski v. Adjudication Officer & Ors. [2021] IESC 24 concluded in early April. At the time, Mr Zalewski sought to have the entire system by which Adjudication Officers determine cases involving the rights of employees declared unconstitutional. Mr Zalewski was unsuccessful in this claim.

However, the Supreme Court made findings that have significantly altered how Adjudication Officers do their work. Here, we look at the case in question, the changes made and how they will affect future Workplace Relations Commission (WRC) cases.

The case in question

In 2016, Mr Zalewski made unfair dismissal and non-payment of wages claims in the WRC against his former employer. Following the initial hearing into the matter, the Adjudication Officer adjourned the case.

The WRC then contacted Mr Zalewski’s legal representative to confirm 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. She then told them 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.

Supreme Court decision

The Supreme Court decided that Adjudication Officers acting on behalf of the Director General of the Workplace Relations Commission were, in most cases, administering justice. The administration of justice requires that certain minimum standards are met. The procedures under the Workplace Relations Act 2015 did not meet these standards and so the procedures under the 2015 Act were unconstitutional. The Court found that in order for proceedings before the WRC to meet the requisite standards compatible with the administration of justice, two significant changes had to be made.

The changes are:

• Proceedings before the Workplace Relations Commission should be held in public, and;
• Evidence in proceedings before the Workplace Relations Commission should be given on oath.

This resulted in all proceedings before the WRC pausing for a period while the Oireachtas enacted legislation that brought the WRC in line with the requirements fixed by the Supreme Court. The Workplace Relations (Miscellaneous Provisions) Act 2021 was enacted on July 22nd, 2021.

In addition to the above, the 2021 Act made other changes:

• Set standards for the appointment of Adjudication Officers of the Workplace Relations Commission, such as prohibiting the appointment to the position of those who have been convicted of certain offences, undischarged bankrupts and persons disqualified from being directors of a company.
• Provided for the removal of Adjudication Officers where they have engaged in certain misconduct or failed to execute their duties as an Adjudication Officer.
• Amended the process for enforcement of Workplace Relations Commission decisions to require enforcement proceedings be brought on notice.

Evidence under oath

In future, a person may be required to swear an oath or affirmation by the Adjudication Officer hearing the case. If the person who swore the oath or affirmation gives a materially false statement, knowing that statement to be false, that person can be fined up to €100,000 and face a term of imprisonment of up to 10 years.

The 2021 Act allows for the oath or affirmation to be administered in proceedings brought pursuant to s.8 Unfair Dismissals Act, s.9 Protection of Employees (Employers’ Insolvency) Act 1984, s.79 Employment Equality Act 1998 and s.25 Equal Status Act 2000.

Hearings to be heard in public

Proceedings will be presumed to be held in public, unless the Adjudication Officer believes that special circumstances require that proceedings should be conducted “otherwise than in public”, which means that unconnected parties can be excluded from the hearing and that journalists would be prevented from reporting certain information in relation to the case. It also means that some identifying information will be removed from the written determination published by the WRC.

Further Acts amended

The 2021 Act also amends the Industrial Relations Act 1946, the Unfair Dismissals Act 1977, the Protection of Employees (Employers’ Insolvency) Act 1984, the Employment Equality Act 1998, and the Equal Status Act 2000 to allow for the same penalties for perjury as outlined above.

Within 12 months of the coming into effect of this legislation, a review will be conducted of these reforms and a report will be presented to the Oireachtas.

What does this mean for employers?

If you find yourself having to deal with the WRC, the entire process will be a lot more formal and demanding. Adjudication Officers will be more like specialist judges hearing employment matters. There will be increased media scrutiny of both the Adjudication Officers themselves and of employers and employees who find themselves in litigation.

The reputational risks for everyone will be much higher, so it’s crucial you have professional representation when appearing before the WRC.

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