In a remarkable decision (and even more remarkable dissenting judgements), the Supreme Court of Ireland (O'Donnell J. delivering the majority decision in  a 4:3 split) has ruled that certain elements of the WRC's adjudication hearing process are unconstitutional, although the Court declined to rule that the Workplace Relations Act 2015 was itself unconstitutional.

Regular readers will have followed this case for a number of years - this is the applicant's second case before the Supreme Court. In 2019 the Supreme Court ruled he had the requisite locus standi to pursue his constitutional challenge. It's taken a further two years to have the more substantive issues dealt with.

Background and Key Issues

Mr Zalewski was unhappy with a written decision of a WRC Adjudication Officer in relation to his unfair dismissal claim and there were some major errors made by the AO that were accepted by the WRC. Nonetheless, the decision and the adjudication process were challenged as unconstitutional on several grounds. We covered an earlier High Court decision in April 2020, when an RDJ article highlighted some of the key challenges in relation to constitutional rights and fair procedures:

• An AO at the WRC is not required to have any legal qualification.
• There is no mechanism for an AO to take evidence under oath or affirmation. (The Labour Court, by contrast, can and does take evidence under oath), and no criminal sanction for any person who gives untrue evidence.
• There is no express right to cross-examination of witnesses at the WRC.
• Hearings are held otherwise than in public. (Again, by contrast, the Labour Court is held in public).

Furthermore, he submitted that the appeals process lies with a body (the Labour Court) which also does not require persons to be legally qualified.
https://www.legal-island.ie/articles/ire/features/labour-superior-court-review/2020/may/challenge-to-the-workplace-relations-commissions-adjudication-service-high-court-decision/

Let us take these 4 key issues in turn:

AO Not Required to Have Legal Qualification

In relation to this point, the Supreme Court commented:

"Courts and lawyers do not have a monopoly on fact-finding, or even the law’s application, and cannot claim infallibility in either respect. If it were otherwise, there would be no need for an appellate system.  There is no doubt that the range of decisions required to be made by the W.R.C. can involve very complex areas of law both national and European, but there is no justification for insisting that, as a matter of constitutional law, a law degree or experience as a practising lawyer is an essential qualification."

Furthermore, the Court took no exception to the State’s provision of a cost-effective remedy for employment disputes:

"I wish, however, to make it absolutely clear that, in doing so, I do not criticise in any way the policy underlying the 2015 Act of providing a cheap, relatively informal, and efficient decision-making function, staffed by persons with expertise in the areas of employment law and with practical experience in industrial relations.  The concept of speedy dispute resolution close to the workplace and in a manner not hidebound by either formality or procedure has much to recommend it, and I would reject unhesitatingly the contention that such a body must be staffed by people with formal legal training and sufficient legal experience to be appointed judges.  I should also say that, in my limited experience, I have had the opportunity of considering a number of decisions made by adjudication officers which show a detailed understanding of the relevant law, and a careful and thoughtful assessment of the facts of the case."

There is No Mechanism for an AO to Take Evidence Under Oath or Affirmation

The Supreme Court was less happy with this aspect of AO hearings. O'Donnell J. stated:

“Though there may be few prosecutions for perjury, there seems little doubt that the structure created by the requirement to give evidence on oath, and the possibility of prosecution for false evidence, is an important part of ensuring that justice is done in cases where there is serious and direct conflict of evidence. Certainly, we have yet to find a better one. There is nothing in the Act which suggests that such conflicts cannot arise in the context of the jurisdictions exercised by the W.R.C.  In such circumstances, I consider that the absence of at least a capacity to allow the adjudication officer to require that certain evidence be given on oath is inconsistent with the Constitution."

No Express Right of Cross Examination

The Supreme Court recognised the right to cross examine witness evidence as a cornerstone of sound procedures but pulled back from ruling that it's general absence in AO hearings or specific reference in the 2015 Act was unconstitutional:

"I note that the W.R.C. has produced a Guidance Note for a WRC Adjudication Hearing which, at para.6.4, expressly refers to the right to question and cross-examine witnesses. While the guidelines have no statutory force, they are an indication that the W.R.C. does not seek to preclude cross-examination where it is necessary. If cross-examination is wrongly refused, then a remedy is available. I cannot conclude that the absence of an express reference to the availability of cross-examination in this case renders the Act unconstitutional."

Hearings are Held Otherwise Than in Public

A blanket ban on public hearings under the Act is unconstitutional. The Court accepted that not all court hearings need to be held in public, and it may not even need to be the norm in WRC hearings, but:

"I cannot accept that there is a justification for a blanket prohibition on hearings in public before the adjudication officer. Article 34.1 [of the Constitution] makes clear that public hearings are of the essence of the administration of justice. In some cases, this may be practically important because the publicity may bring forward further relevant evidence and witnesses, or because it will allow a party (whether an employee or employer) to achieve public vindication. It may, furthermore, have the general public benefit that it allows the public to see justice administered, which might, for example, make it easier for a judgement to be made on the fairness, competence, and efficiency of the decision-maker... The rule established under the Constitution is not an absolute one, even for court proceedings, and is not expressly required under Article 37 in respect of the adjudicative processes covered by it. There is a justification for calm, quiet, and private resolution of many disputes which may be of particular sensitivity for the participants, and it may even be permissible to have a presumption in favour of private hearings at first instance, but it is not, in my view, possible to justify the absolute ban contained in s. 41(13), particularly when, on appeal [to the Labour Court], the opposite provision is made."

Remedy

This case has not quite concluded:

"The features identified above which are I consider to be repugnant to the Constitution are not inevitable, or even central, to the operation of the 2015 Act. It is necessary to distinguish between the consequences of each finding.  The terms of s. 41(13) require that all hearings shall be conducted otherwise than in public.  It is appropriate to declare that provision repugnant to the Constitution. The effect is that the prohibition on public hearings is removed, and proceedings may, but not must, be heard in public. In relation to question of the administration of an oath, the unconstitutionality resides in the absence of something, rather than a positive provision in the statute.  It would, in my view, be inappropriate to declare the statute as a whole unconstitutional because it does not make provision for this, particularly because, in many cases, an adjudication officer may properly decide that such a requirement is not necessary. Instead, I think it is appropriate to merely declare that the absence of provision for the administration of an oath, or any possibility of punishment for giving false evidence, is inconsistent with the Constitution.  These conclusions do not, moreover, appear to have any consequence for decisions already made in other cases under the 2015 Act, nor do they necessarily preclude current proceedings under the Act, even without amendment of the Act.  The effect of this decision is that proceedings may be heard in public, and it would appear that it is only in those cases where an adjudication officer concludes that it is necessary that an oath be administered that the flaw in the Act would preclude proceedings pending any considered amendment of the Act.  However, I would hear the parties further on the question of the precise remedy, and the order to be made."

Full Judgement:
https://www.courts.ie/view/judgments/4b94d66e-d29c-45e8-8f91-ad0ff80257a5/85524180-e4af-4b32-abe6-9c64b24bb759/2021_IESC_24%20O'Donnell%20J..pdf/pdf

Dissenting Judgements

There is much more to this decision and we cannot do justice to it in this review. It will doubtless feature strongly in our annual review of employment law in November and we will cover other aspects of the case in future bulletins, as the remedies referred to above come to the fore.

It is clear that some strong opinions must have been voiced in the Supreme Court discussions. The dissenting decisions are also worth a read and they highlight the depth of feelings in relation to WRC hearings and constitutional rights that have been fought over in this case.

MacMenamin J.
https://www.courts.ie/view/judgments/50377cf9-0026-4e07-94b0-37bc1861abe5/85524180-e4af-4b32-abe6-9c64b24bb759/2021_IESC_24%20MacMenamin%20J..pdf/pdf

Charleton J: 
https://www.courts.ie/view/judgments/941feac6-95bd-4214-8130-3af746887a7c/85524180-e4af-4b32-abe6-9c64b24bb759/2021_IESC_24%20Charleton%20J..pdf/pdf

The dissenting decision of Justice McKechnie was not available on the Supreme Court’s website at the time of writing.