In the recent case of Zalewski v The Workplace Relations Commission IEHC 178, the High Court dismissed a judicial review challenge by the applicant to the constitutionality of the Workplace Relations Commission (the WRC) established under the Workplace Relations Act 2015 (the 2015 Act).

What happened?

The employee was dismissed by his employer in 2016. The employee took claims for unfair dismissal and payment in lieu of notice. Both claims were dismissed by the WRC. The merits of these claims were not under review by the High Court. Rather its role was to determine whether the employee’s constitutional rights had been infringed by: 

1. the WRC, a non-judicial body, determining matters which should be reserved for legally qualified and judicially appointed judges; and/or
2. the procedures used by the WRC to determine the employee’s claims being so exceptionally deficient. 

Exercising a “Judicial Function”?

The employee sought to rely on Article 34 of the Constitution, which states that “Justice shall be administered in Courts established by law by judges appointed in the manner provided by this Constitution”. Accordingly, the employee argued, the WRC and Labour Court are not appropriate fora to determine employment law disputes. 

The State argued that the mechanisms established under the 2015 Act do not involve the administration of justice as:

1. employment disputes are not characteristic of the business of the courts; and
2. the WRC and Labour Court cannot enforce penalties.  

The High Court disagreed with the State and held that the hearing and determination of employment related disputes is ‘characteristic of the business of the courts‘.  However, the Court held that one of the essential characteristics of the administration of justice was missing. Crucially, the WRC and the Labour Court lack the ability to enforce their decisions. Rather, such decisions can only be enforced by application to the District Court. It was acknowledged that the District Court only has a limited function in employment disputes, but the High Court emphasised that such function cannot be dismissed as a mere ‘rubber stamping exercise’. The District Court retains the discretion to modify the redress ordered and can overrule an order that the employee be re-engaged or re-instated. 

The High Court acknowledged that the powers of the WRC and Labour Court do exhibit many characteristics of the ‘administration of justice’, but as this essential ‘enforcement‘ characteristic was absent, the constitutional challenge to the 2015 Act was dismissed.

Deficient Procedures?

The employee also argued that deficiencies in WRC procedures infringed his personal constitutional rights. 

The employee’s criticisms were fourfold: (i) Adjudication Officers (AOs) are not required to have legal experience or qualifications; (ii) evidence in WRC proceedings is not given on oath/affirmation; (iii) there is no statutory right to cross-examination; and (iv) WRC proceedings (with limited exceptions) are held in private. The High Court concluded that (i) it is unnecessary for an AO, who is carrying out a non-judicial function, to possess any such qualification; and (ii) the requirement for evidence to be provided on oath fell far short of being a constitutional requirement. Crucially, the informal nature of the hearing before the WRC is balanced by the fact that the Labour Court is empowered to take evidence on oath.  The High Court went on to find that (iii) AOs have an implied power to permit cross-examination; and (iv) hearing cases in public may discourage employees from pursuing a claim. Again, the Court felt a balance was struck, as Labour Court hearings are held in public.

Award of Costs

The Court noted that, when making an order for costs in cases such as this, two competing issues must be considered:

1. the objective of ensuring individuals are not deterred from taking public interest action due to the risk of adverse costs orders; and
2. the objective of ensuring unmeritorious litigation is not encouraged. 

The Court was satisfied that these proceedings were in the public interest as the 2015 Act had introduced very significant changes which had the potential to affect a large segment of society. The Court was also conscious that, in order to facilitate constitutional challenges of general public importance, something more than ‘simply shielding’ an applicant from a costs order may be required. On this basis the Court made an order awarding the employee half his costs as against Ireland and the Attorney General.

Contributed by Elaine Egan