Zalewski V WRC, an Adjudication Officer, Ireland & The Attorney General

High Court judgment, delivered April 21st, 2020.

Background Facts ⚓︎

The Applicant, Mr. Zalewski, sought to have a claim for “unfair dismissal”, under The Unfair Dismissals Act 1977 (UDA1977) and a claim for  “payment of wages in lieu of notice”, under The Payment of Wages Act 1991, determined by the Workplace Relations Commission (WRC), through the mechanism set out in the Workplace Relations Act 2015 (WRA2015).

The sequence of events was that there was an initial WRC hearing date, in October 2016, at which the parties appeared in front of an Adjudication Officer (AO). The hearing commenced on the first hearing date, and then an adjournment was sought and granted, by the employer, and a second hearing date issued. There was a dispute between the parties, at the Judicial Review proceedings, as to the purpose of the adjournment, which is of legal significance. The Applicant submitted that it was to allow a witness to attend, while the State argued that it was to allow a witness to attend and to be cross-examined. When the parties attended on the second hearing date, in December 2016, bizarrely, they were informed that the decision had already been issued. Subsequently, a purported written determination was issued to the parties, as though a hearing had taken place.

The Applicant judicially reviewed the entirety of the process. He submitted that the manner in which his case had been handled was indicative of “a systemic or structural failing” in the operation of the adjudication process provided for under the WRA2015, and he submitted that this constituted a breach of his constitutional rights and his rights to fair procedures and natural justice. The WRC acknowledged that the determination had been issued in error and rescinded it, offering to have the matter re-heard from scratch, by a new AO.

Previous Proceedings – Locus Standi ⚓︎

The Supreme Court had previously addressed the issue of locus standi, with respect to these judicial review proceedings. http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/f6662da303a4e0a5802583c300583632?OpenDocument

It found that despite the fact that the WRC, through its Solicitor acknowledged the error, offered to rescind the decision and to assign the matter to a new AO for hearing, Mr. Zalewski still had the requisite locus standi to pursue his constitutional challenge.

Judicial Review Proceedings - Legal Issues Raised  ⚓︎

1. Is this an administration of justice? [Article 34, Bunreacht na hÉireann]
At the judicial review proceedings, in the High Court, the Applicant contended that an adjudication of his claims involved “the administration of justice”, a function properly reserved solely to the Courts and that his constitutional rights and rights to fair procedures and natural justice had been breached. It was also his case that the invalidity he alleged in respect of the WRC also extended equally to the body designated to hear appeals from the WRC Adjudications Officers (AOs), namely - The Labour Court.

The High Court was guided by O’Connell V. The Turf Club [2017] 2 I.R. 43, in which the Supreme Court recently affirmed the five-point test set out in McDonald V. Bord na gCon [1965] I.R. 217 to determine whether an adjudication involves the administration of justice. It was common case that the first three parts of the test were met. What was in dispute was whether part 4 (enforcement/imposition of penalty) or part 5 (orders characteristic of courts/justiciability) were met.

Enforcement of Decisions

Mr. Justice G. Simons,  in the High Court, found that the WRC (along the Labour Court) lacks one of the crucial aspects of the administration of justice, which is the ability of a decision-maker to enforce its decisions. At para 51 of its judgment, the Court notes that: “Crucially, the offence created under section 51 of the WRA2015, is failure to comply with the District Court Order (and not the earlier determination of the Adjudication Officers or the Labour Court.)” It notes at para 76 that: “The striking feature of the enforcement procedure prescribed under the WRA2015 is that it is made on an ex parte basis, i.e. without hearing the employer” before concluding at para 77 that: “With some hesitation, I have concluded that the necessity of having to make an application to the District Court to enforce a decision of an adjudication officer or the Labour Court deprives such determinations of one of the essential characteristics of the administration of justice”, and pointing to the District Court’s discretion to modify the form of redress, thus effectively over-ruling the WRC or Labour Court.

Orders Characteristic of Courts (justiciability)

While the Court found, at para 121 that “the hearing and determination of a claim for unfair dismissal and for the payment of wages in lieu of notice fulfil the fifth limb of the test in McDonald V. Bord na gCon”, the Court held that the “so-called ‘Johnson exclusion area’ had been extended”, (Johnson V Uniys [2003] 1 A.C. 513) stating at para 136: “It seems that the existence of the parallel jurisdiction under employment legislation, such as relevantly the UDA1977, has an inhibiting effect on the common law”, thus precluding “the bringing before the courts of any employment disputes which seek to expand the common law in areas covered by statutory rights.”

Since the Court found that a claim for unfair dismissal and for payment of wages in lieu of notice does not involve an administration of justice, within the meaning of Article 34 of Bunreacht na hÉireann, it found it was consequently unnecessary to consider the arguments advanced under Article 37.

2. Constitutionality – Article 40.3

The Applicant highlighted certain matters, which he said constituted a breach of his constitutional rights, natural justice and fair procedures, with respect to the WRC, in particular:

1. An AO at the WRC is not required to have any legal qualification.
2. 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.
3. There is no express right to cross-examination of witnesses at the WRC.
4. 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.

Legal Findings ⚓︎

No obligation to be legally qualified

The Applicant failed to make out the case that it was “impermissible as a matter of Constitutional law” for the Oireachtas to permit non-legally qualified persons to adjudicate on unfair dismissal or payment of wages in lieu of notice claims. There is no express Constitutional provision to that effect, and the Applicant could point to no case law to that effect either.

The Court held that the fact the Oireachtas chose, on occasion, to include such a qualification requirement could not be determinative in it being obligated to do so, as a matter of constitutional law. Furthermore, the Court held, at para 146: “Article 34 of the Constitution represents the bulwark against encroachment on the judicial function. Where decision-making falls outwith the administration of justice, then the choice as to the eligibility criteria for appointment as a decision-maker, under any particular statutory scheme, is quintessentially a matter for the Oireachtas.”

The Court also pointed out at para 152 that “the extent of the guidance” available to any decision making body is relevant, and that the guidance of the High Court is available as the WRA2015 makes express provision for the Labour Court to refer a point of law arising in proceedings before it to the High Court, as well as there being an option for an appeal to the High Court, on a point of law.

Two affidavits sworn by experienced employment law practitioners that the lack of legal qualifications of the appointees had posed problems in practice were also submitted. These also did not move the Court. The Court found that the Applicant had failed to demonstrate the case contended for, in this regard too.

Right for evidence to be taken under oath, subject to penal sanction.

The Court held that there is a spectrum of decision making, with criminal trials at one extreme and attracting “the full panoply of fair procedures”, and with disciplinary proceedings against professionals “close to that end of the spectrum.”

In trying to locate where to place a claim for unfair dismissal on that spectrum, the Court held that “while it might be appropriate” to hear evidence on oath or affirmation in an unfair dismissal case, and there is an argument for doing so, that fell far short of there being a constitutional right to same.

Furthermore, at para 177, the Court held that the fact there is a right of appeal to the Labour Court and “crucially, the Labour Court is empowered to take evidence of oath”, is of significance in assessing the constitutionality of the statutory scheme. The Court also pointed to the area of planning legislation for comparison and guidance, highlighting that the rights available at the first stage are much less generous than those at the second stage in that process also.

Ultimately, the Court held that there is no constitutional right to have the evidence in an unfair dismissal case and a case for payment of wages in lieu of notice heard on oath or affirmation, subject to criminal sanction, and furthermore, that “there are countervailing factors in the context of employment disputes” of there being a “more informal and expeditious” process, was “a legitimate legislative choice.”

No express provision for cross-examination

The Applicant contended that a further breach of his constitutional rights, rights to fair procedures and natural justice was that there was no express provision for the right to cross-examine. However, as the WRA2015 allows for the possibility of cross-examination where required, (i.e. it is not expressly excluded) and the guidance documents exhibited, those which are issued to AOs by the WRC, and those which are made available to the public by the WRC, envisage cross-examination, the Court disposed of this matter by finding that it would be contrary to the presumption applicable to administrative proceedings, which is set out in East Donegal Co-operative Livestock Mart V. Attorney General [1970] I. R. 317, for the Court to assume that cross-examination will not be allowed, where required.

The Court held that there was a right to cross-examine implicit in Section 41 of the WRA2015, encompassed within “the right to be heard”, stating at para 192, that “A party cannot be said to have been afforded a right to be heard if there is no opportunity to test the other side’s evidence”, and applying the presumption set out in the East Donegal Co-op. case, stating at para 195, that: “It is to be presumed, therefore, that an adjudication officer, when adjudicating on a complaint or dispute, will conduct the proceedings in accordance with the principles of constitutional justice.”

Hearings are held otherwise than in public

The Applicant asserted that the fact the WRC hearings were held “other than in public” breached his constitutional rights. However, no authority was cited in support of the asserted constitutional right and the Court did not agree that the general requirement that justice be administered in public could necessarily simply be “read across” to non-judicial decision-making bodies. The Court found Gilchrist V. Sunday Newspapers Ltd. [2017] 2. I. R. 284 instructive, which set out that any departure from the general rule that justice must be administered in public “should be considered incrementally” by asking whether “there are any lesser steps which would meet any legitimate interests involved.”

The Court held that the statutory requirements of the WRA2015 “struck a proper balance” between the competing considerations of publicity and privacy, by requiring that the decisions be published, albeit on an anonymised basis.

Again, the Court pointed to the appeals process to the Labour Court, available to complainants, and suggested that even if the Applicant’s analysis were correct, the putative right was met by the fact that the Labour Court holds its hearings, in public.

https://beta.courts.ie/acc/alfresco/adf2045f-1fd7-41a2-aa0b-31f0271504d8/2020_IEHC_178.pdf/pdf