The constitutionality of the Workplace Relations Commission (WRC) and Labour Court framework for adjudicating on employment disputes is being challenged in the High Court.
The Supreme Court has decided on 20th March 2019 that the employee, Mr Zalewski, is entitled to have his challenge heard in the High Court which had previously decided he did not have the necessary locus standi.
The outcome of this case in the High Court could be seismic.
Mr. Zalewski had brought claims to the WRC: one for unfair dismissal under the Unfair Dismissals Act 1977 and one for non-payment of wages under Payment of Wages Act 1991. When Mr. Zalewski attended the adjudication hearing the employer-Buywise Discount Store Limited-sought an adjournment as a witness was not available. No evidence was heard.
When Mr. Zalewski attended with his solicitor for the new hearing date on 13th December 2016 he discovered that a decision had been issued by the adjudication officer. This decision was issued on 16th December 2016.
Judicial review in the High Court
Mr. Zalewski and his solicitor were understandably shocked and disappointed and made a protective appeal to the Labour Court and commenced judicial review proceedings in the High Court.
His judicial review application sought declarations that parts of the Workplace Relations Commission Act 2015, the Unfair Dismissals Act 1977, Payment of Wages Act 1991, and the powers and functions granted to adjudication officers in the Workplace Relations Commission were unconstitutional as these powers constituted the administration of justice and the Constitution provides certain safeguards for the administration of justice in Ireland.
The WRC then, as part of an attempt to settle these proceedings, offered a new date for the hearing of Mr. Zalewski’s claims. He refused this offer and the WRC then asked the High Court to dismiss his application on the basis that he did not have locus standi.
The High Court agreed and dismissed his judicial review. However, he appealed to the Supreme Court who found that he did have the requisite locus standi and sent it back to the High Court to be heard. That is where the case lies now and the outcome has tremendous significance for anyone involved in employment law.
The employee’s case is that his claims will be dealt with by way of a statutory scheme-the WRC system-which is inconsistent with the constitution and the administration of justice in Ireland.
The first part of the challenge is the constitutional obligation for the administration of justice to be dealt with by a court, based on articles 34 and 37 of the Constitution.
Article 34.1 of the Constitution of Ireland provides:
1 Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.
Article 37.1 provides:
1 Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
Article 40.3 provides
3 1° The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
The second part of his challenge is to do with the appointment of adjudication officers and the powers that are given to them, the fact that the hearings are in private, and that evidence is not taken on oath.
All of these matters go to the heart of a person’s constitutional right to fair procedures and natural/constitutional justice.
The grounds for the challenge also lie in the absence of any legal requirement of a legal qualification for an adjudication officer to be appointed, no requirement for the taking of sworn evidence during WRC hearings, the hearings being held in private, and the appeal going to a body-the Labour Court-which does not include persons required to be legally qualified.
The outcome of this challenge has immense significance for the future of the WRC and the Labour Court and will be watched closely and carefully by employers, employees, HR professionals, and lawyers.