Workplace Relations Commission

High Court Dismisses Constitutional Challenge to the Workplace Relations Act 2015, WRC Adjudication System and Labour Court

Labour Court Appeals

The validity and constitutionality of the Workplace Relations Commission and Labour Court had been challenged in the High Court by way of a Judicial Review. The High Court has now issued its decision.

The case is Thomas Zalewski and The Workplace Relations Commission, Ireland and the Attorney General, and an Adjudication Officer (Rosaleen Glackin).

The issue

The issue to be determined was whether the Workplace Relations Act 2015, and everything that flowed from it including the WRC adjudication system and the Labour Court, was invalid because it involved the administration of justice. The administration of justice in Ireland is, according to the constitution, reserved to Judges and Courts.

The Applicant also argued that the procedures employed by the WRC were deficient-for example, there was no provision for taking evidence on oath, no express right to cross-examine witnesses, and the hearings take place in private whilst the administration of justice in Ireland, pursuant to Bunreacht na hEireann, is to be done in public.

Ireland has two principal defences to this argument:

  1. Determinations of Workplace Relations Commission adjudication officers were not binding and enforceable as a party would have to go to the District Court to enforce the decision, therefore they were not administering justice;
  2. Employment disputes have not traditionally been dealt with by the courts-that is, they are not justiciable.

The factual background

The Applicant had been dismissed from his job as a supervisor in a convenience store and brought a claim for unfair dismissal and payment in lieu of notice. The WRC adjudication officer adjourned, after a few minutes, the hearing in October 2016, and it was rescheduled for 13th December 2016.

The parties showed up on 13th December but the Adjudication Officer (AO) told them that the decision had issued and the rescheduled hearing should never have been listed. 

The AO then issued a decision on 16th December 2016 as if a full hearing had taken place, notwithstanding that she was on notice that no hearing had gone ahead.

The applicant claimed the only way the AO could have done this was on the basis of the written submissions rather than on the oral evidence after a hearing and claimed that this was evidence of a systemic failure in the way hearings were conducted in the WRC.

The State agreed that this decision was invalid and were prepared to agree to an order of certiorari setting it aside.

The Applicant also claimed the right to cross examine in order to resolve the unfair dismissal claim as there was a conflict of evidence between the parties and witnesses.

The decision

The High Court found that the decision making under the Workplace Relations Act 2015 lacks an essential characteristic of the administration of justice-that is, the ability of the decision maker to enforce decisions. This requires a court application and the District Court has jurisdiction to overrule the decision of the WRC.

For these reasons the Adjudication officers cannot be said to be administering justice.

The High Court also held that the argument that the procedures under the Workplace Relations Act 2015 are deficient is not well founded and dismissed the challenge to the validity of the Workplace Relations Act 2015.

The original claims under the Unfair Dismissals act 1977 and Payment of Wages Act 1991 were remitted back to the WRC for rehearing by another adjudication officer.

This decision is long and detailed and looks at various aspects of the issues touching upon employment law disputes and their determination in Ireland. It is worth a read because it looks at the interaction between the various statutes and the Constitution on the resolution of employment claims, the development of the Unfair Dismissals Act 1977 and the Payment of Wages Act, and how employment law and the resolution of disputes has evolved down through the years.

You can read it here: Thomas Zalewski v The Workplace Relations Commission [2020] IEHC 178

Employment Injunctions

Board of Management Decision Quashed for Failure to Give Reasons for Dismissal of School Principal

This school principal went to the High Court to seek an order quashing the decision by the Board of Management of a national school from terminating her employment as a school principal and teacher.

The allegations against the school principal involved allegations of inappropriate behaviour towards two pupils, made against her by a special needs assistant. The school was a small one with only two teachers, including the principal.

The school principal had been dismissed in March 2018 and appealed the decision to the Disciplinary Appeals Panel. The Disciplinary Appeals Panel (DAP) recommended that the teacher be immediately reinstated to her position as principal. The Board of Management rejected this recommendation.

The teacher’s case to the High Court was that the investigation leading up to, and the decision to terminate her employment was fundamentally flawed and legally indefensible. The core of her argument, however, was that the failure by the Board of Management to give any, or any adequate, reasons for the decision to dismiss her was irrational and unreasonable.

She argued that there was no proper evaluation of the evidence against her, nor had she been told what allegations had actually been found as having been proven against her.

Thus, she argued that the decision was bad at law for having failed to giver reasons for the decision.

She also argued that the decision to ignore the recommendation of the DAP was bad at law having regard to the established case law as to the circumstances where a Board could lawfully depart from the recommendations of the DAP.

High Court Decision

The High Court, Barr J, held that the Board of Management had acted rationally and fairly in the investigation and disciplinary stage of the process.

Where it went wrong, however, was in engaging with the evidence against the Principal and deciding which, if any, allegations were proven against her. The Board had to engage with the evidence in a fair and rational manner and this could only be shown if they could give reasons for their decision.

They had failed to do this.

They also failed to give due regard to the recommendation of the DAP and there was no logical or constructive engagement with the DAP recommendation. For these reasons the High Court set aside the decision of the Board to terminate the Principal’s employment and quashed the decision.

You can read the full 50 page decision of Barr J here: C.D. and The Board of Management of a National School.

Employment Law Procedures and Policies

Teacher Refused Judicial Review in High Court Seeking to Stop Disciplinary Case Against Her

Are you a teacher?

A recent decision of the High Court may be of interest to you as it involved a teacher commencing High Court legal proceedings as a consequence of being asked to attend a disciplinary hearing.


The allegation against the teacher concerned her conduct towards school staff including the school Principal. The procedures for the suspension and dismissal of teachers provide for the Principal to deal with the issue at Stage 1.

The teacher complained that as the allegation against her concerned her conduct towards the Principal the Principal should not be involved in the procedure. The Board of Management did not agree but eventually it was decided that the Principal would step aside and an independent person would be asked to deal with the stage 1 procedure.

So, the teacher went to the High Court seeking to prevent the disciplinary procedure from going ahead on two broad grounds:

  1. The Principal was biased and had prejudged the issue
  2. The teacher also argued that the procedures did not apply to her as they required the concurrence of the Minister for Finance

The Board of Management’s position was that they were merely applying the well-established, negotiated procedures which were agreed between teachers, unions, the Patrons and management bodies, and the Department of Education.

The Board also took the view that this was a matter with which the High Court should not involve itself as it was a minor matter which, at worst, would result in a verbal warning which would disappear of the teacher’s record after 6 months.

The Board also argued that section 24 of the Education Act, 1998 allows the Department of Education to determine the terms and conditions of employment of teachers and a board of management can suspend and dismiss teacher in accordance with the procedures agreed between the Minister of Education, the boards of management, the patron bodies, and the trade unions.

24.—(1) Subject to this section, a board may appoint such and so many persons as teachers and other staff of a school as the board from time to time thinks necessary for the performance of its powers and functions under this Act.

(2) The numbers and qualifications of teachers and other staff of a school, who are to be paid from monies provided by the Oireachtas, shall be subject to the approval of the Minister, with the concurrence of the Minister for Finance.

(3) A board shall appoint teachers and other staff, who are to be paid from monies provided by the Oireachtas, and may suspend or dismiss such teachers and staff, in accordance with procedures agreed from time to time between the Minister, the patron, recognised school management organisations and any recognised trade union and staff association representing teachers or other staff as appropriate.

(4) Pending the agreement of procedures provided for in subsection (3), the procedures applied in the appointment, suspension and dismissal of teachers or other staff immediately before the commencement of this section shall, after such commencement, continue to be applied.

(5) The terms and conditions of employment of teachers and other staff of a school appointed by a board and who are to be paid from monies provided by the Oireachtas shall be determined by the Minister, with the concurrence of the Minister for Finance.

(6) Where all or part of the remuneration and superannuation of teachers and other staff of a school is paid or is to be paid from monies provided by the Oireachtas, such remuneration or superannuation shall be determined from time to time by the Minister, with the concurrence of the Minister for Finance.

(7) Where, at the commencement of this section the employer of the teachers or other staff in a post-primary school is a person or body of persons other than the board of the school, then subsections (1), (3) and (5) shall apply as if the person who or the body which, at such commencement and from time to time thereafter, is such employer, is substituted for the board as therein referred to.

(8) Except in the case of an agreement as provided for in subsection (3), nothing in this Act shall have the effect of altering, after the commencement of this Act, the terms and conditions of teachers and other staff of a school under which they were employed before such commencement.

(9) This section shall not apply to teachers or other staff of a school which is established or maintained by a vocational education committee.

High Court

The Judge in the High Court held that any perception or allegation of bias or absence of fair procedures was adequately dealt with by the appointment of an independent person to investigate.

He also held that the procedures agreed between unions and boards of management formed part of the teacher’s contract of employment and were applicable and in force until they were changed by the Department of Education or were held to be invalid in legal proceedings.

Judge Binchy also noted that a verbal warning was a minor penalty and, provided there was no problem with her conduct, would be gone off her record after 6 months.

In conclusion the High Court held that the matter was of such a minor nature that the procedures adopted by the Board of Management were not amenable to judicial review and he refused the application.

Employment Injunctions

Statutory Appeals and Judicial Review in Employment Law in Ireland

judicial review

If you appeal a decision of the WRC to the Labour Court and you are still dissatisfied with the outcome you have two options that may be open to you:

  1. A statutory appeal to the High Court on a point of law
  2. A judicial review

A judicial review is appropriate where your case has been handled so badly that you can reasonably argue that you have not had a fair hearing in the first instance-for example at the WRC. An example of a failure by a statutory body, the Employment Appeals Tribunal, to exercise its power properly was in Mythen v Employment Appeals Tribunal [1990] E.L.R. 1. In this case the High Court held that Mythen should not be expected to appeal the decision of the EAT to the Circuit Court when it had failed to hear the case on a mistaken basis thus failing to exercise its statutory power.

In Board of Management Blackrock College v Mary Browne [2013] I.E.H.C. 607 Ms Browne argued that the Board of Management Blackrock College should have proceeded by way of judicial review, not by way of a statutory appeal against the decision of the Labour Court.

The High Court held that the Board of Management Blackrock College was correct in going by way of statutory appeal as it argued that the Labour Court erred in law in reaching its decision and there was a particular statutory appeal provided for on the statute books for this type of circumstance.

The High Court has held that the default position is clear: a party must pursue a statutory appeal rather than a judicial review as the Oireachtas set up such a procedure and put it on the statute books for those dissatisfied with an initial decision. See Koczan v Financial Services Ombudsman [2010] I.E.H.C 407.

The High Court in Koczan v Financial Services Ombudsman [2010] I.E.H.C 407 gave some guidance as to when a judicial review might be appropriate:

  • A total lack of subject matter jurisdiction
  • The integrity or basic fairness of the decision making process
  • Cases touching on the constitutionality of legislation or validity of statutory instruments, where the legal issue cannot properly be raised by way of appeal

These cases must be regarded as exceptions, however, rather than the rule.

Judicial Review

Where a lower court falls into error in respect of jurisdiction, or acted outside its jurisdiction, or failed to exercise its jurisdiction (eg Mythen case above), bringing a judicial review is the way to proceed. Also where a lower court have permitted unfair procedures.

Otherwise, there is a fair degree of curial deference and respect shown by the High Court to the Labour Court and a presumption that it will act within jurisdiction.

Statutory Appeal

The High Court has a limited role in dealing with a statutory appeal from a decision of the Labour Court. The appeal must be based on a point of law or an unsustainable finding of fact, as stated in An Post v Monaghan [2013] I.E.H.C. 404

The High Court cannot weigh strengths or weaknesses of arguments put forward or the Labour Court’s decision thereon.

Order 84C of the Rules of the Superior Courts sets out the rules for a statutory appeal to the High Court which is done by way of an Originating Notice of Motion. There is a time limit of 21 days from the notification of the deciding body’s decision, unless this is extended for ‘good and sufficient reason’ and no injustice is done to any other person.

Where the High Court finds that a lower body has fallen into an error of law-either on its application of the law to the facts or its analysis of the facts-it will send the case back to the lower body to be reheard.

How the High Court Deals with Statutory Appeals and Judicial Reviews

The approach of the High Court is set out in the Henry Denny & Sons (Ireland) Limited v Minister for Social Welfare [1998] 1 IR 34 and is to the effect that the Superior Courts should be slow to interfere with the decisions of expert administrative tribunals, unless ‘conclusions are based upon an identifiable error of law or an unsustainable finding of fact by a tribunal’.

Thus, the circumstances where the Superior Courts will interfere are where there is

  1. An identifiable error of law
  2. No relevant material to support a finding of fact
  3. An irrational or illogical finding of fact
  4. An absence of fair procedures and constitutional justice in how the lower tribunal carried out its hearing


The Supreme Court, in Burke v Miley, Miley and Devils Glen Equestrian Centre Limited [1990] 1 IR 343, held that the Employment Appeals Tribunal should have immunity from costs orders except in cases where there was evidence of mala fides.

However, in employment cases the likelihood is that the two parties in the original dispute will be involved in the judicial review in which case either party can be held liable for costs, depending on the Judge.

In statutory appeal cases costs are more likely to be awarded to one or other of the parties, at the discretion of the Judge.