Introduction

This judicial review matter concerned a challenge to the handling of an unfair dismissal claim by an Adjudication Officer of the Workplace Relations Commission (“WRC”). Simons J. provided a robust judgment, dismissing the Applicant’s challenges in their entirety and making salient and more widely-applicable findings regarding the application of the Supreme Court judgment in Zalewski v. An Adjudication Officer [2021] IESC 24, [2021] 32 E.L.R. 213; the administration of justice; and the appropriate use of judicial review proceedings.

Background

On 31 January 2020, the Applicant brought an unfair dismissal claim against the Respondent before the WRC. The claim had had been part heard over five days, but not yet determined, when the Zalewski judgment was handed down on 6 April 2021. The Zalewski judgment identified legislative shortcomings governing certain WRC procedures as being inconsistent with the Constitution. One such shortcoming concerned the absence from the Unfair Dismissals Act 1977 and the Workplace Relations Act 2015 of any provision for the administration of an oath or affirmation. The legislation was subsequently amended in July 2021 by the Workplace Relations (Miscellaneous Provisions) Act 2021 (“WRA 2021”).

On 16 April 2021, after the Zalewski judgment and prior to the implementation of the amending legislation, the WRC published policy guidance on its website outlining certain procedural changes regarding the administration of oaths and affirmations. The policy guidance essentially indicated that where there is a serious and direct conflict of evidence, the adjudication officer would adjourn the hearing pending the awaited legislative amendments. On 21 May 2021, the WRC revised this policy guidance to state that part-heard cases involving a serious and direct conflict of evidence may have to commence afresh before a different adjudication officer who would administer the oath or affirmation. The policy guidance indicated that this was a matter for the adjudication officer in each part-heard case and that parties would have the opportunity to make submissions. Having heard submissions from the parties on 12 May 2021, the Adjudication Officer wrote to the parties on 26 May 2021, outlining her decision to recuse herself from the case so that it could be heard afresh. She noted “I am firmly of the view that, in light of the [Zalewski] Supreme Court judgment, this is the safest and most prudent course of action”.[1]

On 19 July 2021, the Applicant brought judicial review proceedings essentially challenging this decision on the basis that:

• The Zalewski judgment does not apply to part-heard claims;
• There is no requirement for an oath to be administered in the context of this unfair dismissal claim; and
• The WRC’s revised published policy guidance incorrectly interpreted the Zalewski judgment and sought to “whitewash” the Adjudicator Officer’s decision.

The Applicant therefore sought an order directing the Adjudication Officer to resume the hearing of the unfair dismissal claim; and an order compelling the Adjudication Officer to direct the disclosure of certain documentation.

Findings

The Application of the Zalewksi Judgment:

The Applicant argued that the Zalewski judgment should not apply to part-heard unfair dismissal claims and that the WRA 2021 should not apply retrospectively. The Applicant argued that as the unfair dismissals claim is a civil matter, it could be distinguished from criminal caselaw concerning retrospective application (in this regard see A v. Governor of Arbour Hill Prison [2006] IESC 45; [2006] 4 I.R. 88 to Wansboro v. Director of Public Prosecutions [2018] IESC 63; [2019] 1 I.L.R.M. 305). The Applicant asserted that the application of the Zalewski judgment would cause her a disadvantage insofar as the applicable procedural law had changed halfway through her claim. Finally, the Applicant argued that a distinction should be drawn between a Supreme Court finding of unconstitutionality concerning a legislative omission and a finding of unconstitutionality concerning an offending legislative provision.

Simons J. rejected all of these arguments. In essence, he found that there is no caselaw to support the proposition that a Supreme Court finding regarding unconstitutional legislation operates differently in civil proceedings. He dismissed the logic of the Applicant’s argument that the Adjudication Officer should determine the unfair dismissal claim by reference to the unamended and (now) unconstitutional legislation. Simons J. found that the Applicant would not be at a disadvantage as the procedural safeguards upheld by the Zalewksi judgment are for the benefit of all parties. Moreover, he found no support for the proposition that that the Zalewski judgment did not apply as the unconstitutionality finding concerned a legislative omission. Finally, relying on Wily v. Revenue Commissioners [1994] 2 I.R 160, Simons J. noted that the Applicant “cannot be said to have any legitimate expectation that her claim for unfair dismissal would be completed under the unamended, invalid version of the legislation.”[2]

The Requirement to Administer the Oath:

The Applicant argued, in the alternative, that the decision to direct the hearing to commence afresh under a different adjudication officer was unlawful on the basis that there is no serious and direct conflict of fact to justify taking evidence on oath. The Applicant further argued that even if certain evidence must be given on oath, there is no requirement for the entire hearing to recommence.

Simons J. emphasised from the outset that “it would be most unusual for this court, in the exercise of its judicial review jurisdiction, to intervene in the proceedings of any tribunal exercising a judicial function prior to the conclusion of those proceedings.”[3] In any event he found it highly apparent that there were significant conflicts of fact – not least involving an allegation that one of the principal witnesses had deliberately given false evidence. Simons J. found that these conflicts could only be addressed properly and fairly by requiring the evidence to be given under oath and submitted to cross-examination. As a result, he found that “there can be no doubt but that the decision to discontinue the hearings, and to direct that this claim for unfair dismissal be heard and determined by a different adjudication officer is legally correct.”[4] He found that “some sort of hybrid hearing”[5] whereby the remaining evidence would be given on oath, but unsworn evidence would remain on record would be unsatisfactory as the Adjudication Officer could be invited to prefer unsworn evidence over sworn evidence.

Simons J. noted: “It was eminently sensible for the (original) adjudication officer to take the precaution of ensuring that the fresh hearing be before a different adjudication officer who had not had any prior involvement. Even were this decision to be characterised as conservative, it certainly cannot be condemned as unreasonable or irrational. Indeed, there would be much stronger grounds for judicial review had, counterfactually, the (original) adjudication officer decided to retain seisin of such a contentious part-heard claim for unfair dismissal rather than recuse herself.”[6]

Simons J. accepted that hearing the unfair dismissal claim afresh will result in some delay. However, he found that any concerns about delay were outweighed by any possible perception of predetermination. He noted the Court of Appeal findings in Commissioner of an Garda Síochána v. Penfield Enterprises Ltd [2016] IECA 141, that “administrative convenience, efficiency or delay cannot trump the requirement that justice is not only done, but is seen to be done.”[7]

Finally, Simons J. found that there was no basis whatsoever for the Applicant’s personal criticisms of the Adjudication Officer and noted that the Applicant subsequently withdrew the allegations of bias on the part of the Adjudication Officer and the WRC at the hearing.

The WRC’s Published Policy Guidance:

The Applicant criticised the WRC’s published policy guidance as being an incorrect interpretation of the Zalewski judgment and a “whitewash” of the Adjudication Officer’s decision. Simons J. rejected these arguments in full. He found no evidential basis for these allegations and was satisfied that the policy guidance revised on 30 July 2021 correctly interpreted and applied the Zalewski judgment. He did not believe that any revisions to the policy guidance affected the validity of the Adjudication Officer’s decision to direct a fresh hearing. He noted that the Adjudication Officer is independent in the exercise of her functions and that she had full jurisdiction over the unfair dismissals claim in front of her, which was not contingent on the WRC’s policy guidance. Finally, he found that any statistics sought by the Applicant regarding the number of part-heard claims which had been remitted to a fresh hearing were irrelevant.

[By way of background, it was submitted by the WRC at the High Court Hearing that the WRC policy guidance applies as follows: First, the adjudication officer, having canvassed the parties’ views, decides if the part-heard complaint is a matter in which a serious and direct conflict of evidence arises. Then, a decision is taken about how the re-hearing of evidence might fairly and justly proceed to comply with the requirements of natural and constitutional justice. Where an adjudication officer has already heard unsworn evidence on a serious and direct conflict, they may be unable to determine the case in a manner which is fair and impartial. There will be cases in which an adjudication officer is satisfied that they have heard such a degree of evidence that they are no longer an impartial ear to the sworn evidence to come. There will be other part-heard cases in which this is not the case, or in which the earlier conflict was around legal interpretation or some other preliminary matter, but not evidence. It is a matter for the adjudication officer as to whether the unsworn evidence needs to be heard afresh, and if so, whether it needs to go back for a fresh hearing before a new adjudication officer, as was the case in this challenge.][8]

The Disclosure of Documents:

The Applicant sought the disclosure of emails sent over a six-hour period on 29 March 2019. She engaged in correspondence with the Adjudication Officer who informed her that she would address the disclosure request at the hearing. However, events overtook the matter and the Adjudication Officer decided that the hearing should be heard afresh. The Applicant made detailed submissions to the High Court, arguing that the Adjudication Officer was obligated to direct the disclosure of the emails to determine the facts of the claim and comply with fair procedures.

Simons J. dismissed the Applicant’s arguments in full. He noted the gravity of the Applicant’s request that the High Court intervene in a part-heard claim for unfair dismissal and make a significant decision as to how it should be conducted. He referred to section 8(13)(a) of the Unfair Dismissals Act 1977, stating that directions concerning the disclosure of documents was solely a matter within the statutory discretion of the Adjudication Officer. He refused to order the disclosure of the documents on a number of grounds, namely, the matter would be heard afresh and so any complaint regarding the disclosure of documents was moot; the Adjudication Officer had not made any final decision concerning the disclosure of documents and it would therefore be premature to grant judicial review (see Huntstown Air Park Ltd v. An Bord Pleanála [1999] 1 I.L.R.M. 281); and in this case, there was also a full right of appeal to the Labour Court once the decision-making at first instance concluded.

The Judicial Review of Interim Procedural Rulings:

Simons J. proceeded to make some general observations regarding the appropriateness of seeking judicial review of interim procedural rulings made in the context of an unfair dismissal claim. He noted that judicial review is a discretionary remedy and relief will be refused where the application is premature or where there is an adequate alternative remedy. He also noted that there are “both principled and practical reasons as to why the statutory procedures (including a statutory right of appeal) should be exhausted”[9] before seeking a judicial review. As regards the principled reasons, Simons J. referred to the Supreme Court judgment in State (Abenglen Properties Ltd) v. Dublin Corporation [1984] I.R. 381, holding that certiorari should not issue where there are adequate statutory procedures in place to address any error or complaint. As regards the practical reasons, he noted that in this instance the Labour Court is better placed to deal the matter on a de novo appeal, unlike the High Court in judicial review proceedings which does not have a “full appreciation of the ‘nuts and bolts’”[10] of the unfair dismissal claim. Finally, Simons J. stressed that it was not for the High Court to micromanage proceedings before an adjudication officer. He stated that a judicial review concerns the legality of a decision and that the High Court would have to be “satisfied that the ruling was manifestly unfair, unreasonable or otherwise made without jurisdiction before it could set aside an interim procedural ruling.”[11]

Conclusion

Simons J. comprehensively deals with the arguments before him, dismissing the Applicant’s challenges in their entirety. He also made the following salient and more widely-applicable findings:

• The Zalewski judgment applies, in principle, to pending claims for unfair dismissal which have not been determined.
• The WRC published policy guidance[12] was correct policy guidance to which adjudication officers may have regard.
• The determination of unfair dismissal claims and the making of relevant procedural rulings is a matter for the independent adjudication officer alone.
• The overarching objective that justice is not only done, but is seen to be done, is paramount. Concerns regarding administrative convenience, efficiency or delay as a result of hearing a matter afresh do not outweigh this overarching objective.
• Judicial review is concerned with the legality of the ruling and is not to be used to micromanage proceedings before an adjudication officer.
• Judicial review relief will be refused where applications are premature or where there is an adequate alternative remedy available.

Judgement available here: https://www.courts.ie/view/judgments-year/a63d699f-7c33-4957-8857-a2bc1b2400d3/038a98e9-74c2-4caa-9038-8bc2a29ae8fc/2021_IEHC_667.pdf/pdf