Permanent changes for the WRC and the wider implications of the recent Supreme Court decision in Zalewski
In its recent decision the Supreme Court, by a majority, held that the exercise of powers by adjudication officers of the Workplace Relations Commission (“WRC”) was an administration of justice within the meaning of Article 37 of the Constitution. It followed that two sections of the Workplace Relations Act 2015 (the “Act”) were found to be incompatible with the Constitution. Until now WRC hearings were heard in private and evidence heard orally during such hearings, was not given under oath.
Mr. Zalewski was employed by Buywise Discount Store Limited as a security guard and supervisor. When dismissed from his job for allegedly failing to follow company procedures, Zalewski brought unfair dismissal and non-payment of notice claims. The adjudication officer dismissed the case without any formal hearing resulting in an appeal to the Labour Court and the institution of judicial review proceeding in the civil courts. Further background to Mr Zalewski’s constitutional challenge is discussed in our earlier briefing on the case.
The administration of Justice
The Court’s majority judgment was delivered by O’Donnell J. He noted the varying approaches to the definition of the administration of justice and held that a singular definitive test for determining whether a body was carrying out the administration of justice could not be established.
He commented that that the five part test (established in McDonald v Bord na gCon (No 2) ) for determining if the administration of justice is being carried out should be applied with flexibility:
- A dispute or controversy as to the existence of legal rights or a violation of the law;
- The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
- The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
- The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgment;
- The making of an order by the court which, as a matter of history, is an order characteristic of courts in this country.
In analysing the functions of the WRC, O’Donnell J. concluded that although its adjudicative function involved the administration of justice (under Article 34 of the Constitution), the functions concerned were limited and therefore, permissible (within the scope of Article 37 of the Constitution). The Court identified the following limitations on the powers of the WRC:
- by subject matter to the areas of employment law specifically identified in the 2015 Act;
- on awards of compensation to 104 weeks’ remuneration;
- limited enforcement coupled with the limited capacity of the District Court to substitute compensation for redress by way of reinstatement or reengagement;
- a decision of the WRC is subject to appeal, placing a limitation on the powers of the body;
- the WRC is subject to judicial review.
The appellants argued that section 41(13) of the 2015 Act was unconstitutional because under the Act (a) proceedings heard before an adjudication officer cannot be in public and (b) there is no provision for evidence to be given on oath and therefore, no penalty for giving false evidence.
In considering these arguments the Court found there was no justification for a blanket prohibition on public hearings before an adjudication officer, stating that public hearings are of the essence of the administration of justice.
Secondly, it held that the absence of the provision for the administration of an oath or any possibility of punishment for giving false evidence is inconsistent with the Constitution, but did not go as far as declaring it unconstitutional. In doing so, the Court highlighted that the importance of evidence being given on oath lies in the power to punish for false evidence and provides an incentive for truthful testimony.
Implications of the Decision
Although the judgment will not impact on any decisions already made in cases under the 2015 Act, emergency legislation is expected to allow for hearings before the WRC to be held in public and for the administration of oaths. In the meantime, the WRC has published guidance on its website in relation to the changes to its practices that have already taken effect, which include the publication of case details online with provision for members of the public to attend remotely by registering in advance (see here for more details). Where a ‘serious and direct conflict of evidence’ arises, the WRC will adjourn the hearing to await the emergency legislation allowing for the administration of an oath or affirmation, or to provide a punishment for giving false evidence. Disputes arising under the section 13 of the Industrial Relation Act 1969 or mediation hearings are unaffected by these recent developments.
The impact of this decision is likely not only to be relevant for HR professionals and employment specialists, it is likely to have considerable implications for all manner of administrative, adjudicative and regulatory bodies who may exercise quasi-judicial powers determining the rights or entitlements of individuals – particularly if those matters are decided in private and/or contested facts are not addressed through evidence given under oath. Based on the Court’s judgment, such bodies may also be considered to be administering justice and subject to the same legal frailties identified in the case of the WRC.