Last week, in a landmark judgment, the Court ruled that the fact that WRC hearings were held in private was repugnant to the constitution
However, the Court stopped short of striking down the industrial relations framework implemented under the Workplace Relations Act 2015 as unconstitutional.
The seven-judge division of the Court ruled that the functions of the WRC Adjudication Officers and the Labour Court constituted the administration of justice, and that this entailed a high level of compliance with fair procedures.
The ruling may also have future implications for the appointment and tenure of Adjudication Officers and Labour Court members, as the Supreme Court highlighted the importance of their independence if carrying out the adminisration of justice.
The case originated in 2016, when Tamasz Zalewski took an unfair dismissal case against his employer Buywise Discount Store Ltd.
However, the WRC Adjudication officer dismissed his case based on preliminary written submissions without allowing a full hearing to be held including cross-examination of witnesses.
The Supreme Court described these events as “startling, indeed calamitous,” as well as “both extraordinary aned inexplicable.”
The WRC acknowledged this was an error and offered a re-hearing with a different adjudicator.
However, Mr. Zalewski challenged the constitutionality of the general WRC procedures laid out in the Workplace Relations Act 2015.
The government has pledged to introduce emergency legislation as soon as possible to enable this, and to prosecute them for perjury if they give false evidence.
The Department of Enterprise, Trade and Employment which oversees the WRC acknowledged that the Zalewski ruling would affect some hearings in the short term, and that adjournments may be necessary over the coming weeks until emergency legislation is enacted to give effect to the judgment.
The legislation will provide for elements including the ability for evidence to be provided on oath or affirmation, and the power to prosecute for perjury.
It will also cover the “generality” of hearings to be heard in public, “save those that may, in circumstances to be defined, heard in private”.
The Minister for Business, Employment and Retail, Damien English pledged that the Government would introduce legislative amendments without delay to enable the WRC to continue to discharge its statutory functions in line with the Constitution.
“I acknowledge that the ruling of the Supreme Court may impact some cases currently before the WRC,” he stated.
“My Department is moving swiftly on this matter and is currently drafting emergency legislation to be introduced as a matter of urgency in the coming weeks. I do believe these procedural changes will ensure continued improvement of the adjudication services.”
Today the Supreme Court declined to make a specific order that the adjudicative functions of the WRC/Labour Court constituted the administration of justice, on the basis the matters were clearly dealt with in last week’s judgment.
It said there could be a risk of unintended consequences if a declaration were made without detailed consideration of each of the potential functoins which might be affected, directly or indirectly, by any such declaration.
However, the Court stressed the importance of its finding, stating: “…it should be emphasised that the absence of a declaration does not in any way detract from the importance of the unanimous decision of all of the members of the panel to the effect that, in the context of this case, the Adjudication Officer was engaged in the administration of justice.”
It said it would declare S 41 (13) of the Workplace Relations Act 2015 which provides that proceedings before an adjudication officer shall be conducted “otherwise than in public” to be inconsistent with the Constitution.
It had also been argued that the legislation was inconsistent by reason of the absence of any provision “concerning the administration of oaths or affirmations or providing for a penalty for giving untruthful evidence.”
The Court stated:” As is clear from the judgments of the Court already given, the principal constitutional concern in this context is the absence of any penalty for the giving of untruthful evidence.”
It notes that counsel for the state had argued that the requirement might not necessarily apply in respect of all functions of an adjudication officer, and said they would make the order in those terms.
In last week’s ruling, the Supreme Court also commented on the need for enhanced independence on the part of Adjudication Officers in circumstances where their actions were determined to amount to the administration of justice (albeit of a limited nature).
It had noted that Adjudication Officers could be “revoked” by the Minister of the day, but acknowledged that the issue had not been a specific area of challenge in the proceedings.
“In those circumstances it does not appear to the Court to be appropriate to make any declaration in that regard although the Court is sure that its observations in that context will be taken on board.”
Mr Zalewski’s original case is to be remitted to the WRC for a new hearing.
Mr Zalewski’s legal team was granted all its costs, despite not winning all the points they argued, due to the significant public interest in the matter.
“While it is true that Mr Zalewski did not persuade this Court that the regime which he challenged was inconsistent with the Constitution by reason of an impermissible conferring of a judicial function on a non-judicial body, nonetheless the fact that this Court was persuaded that the administration of justice was involved formed an important part of the ultimate conclusion of this Court concerning the process which required to be followed in that context,” it stated.
It said the finding in favour of Mr Zalewski to the effect that the administration of justice was involved was “of real significance”.
It’s understood that the Zalewski ruling has already triggered changes in the operations of the WRC.
Sources said parties are now being informed that cases are being heard in public, and they can share a link to a virtual meeting.
In cases that were listed on the basis of private hearings, the parties are being given a few minutes to decide whether they want to proceed in public.
The WRC will be building a system so that people can apply to sit in on a virtual hearing.
Where matters are in dispute, the cases may be deferred until legislation is remedied to permit the taking of an oath or affirmation.
Sources said the Supreme Court’s comments on the independence of Adjudication Officers and members of the Labour Court would require further consideration.
Sinn Féin drafting legislation
Meanwhile, Sinn Féin is drafting legislation to address the issues raised in the Zalewski case.
The party’s spokesperson on Enterprise, Trade, and Employment Louise O’Reilly TD said it was imperative that changes be made to the legislation deemed unconstitutional as soon as possible.
She said had sent Minister of State with responsibility for Employment Damien English her draft legislation entitled the Workplace Relations (Amendment) Bill 2021 aimed at addressing issues including the ban on public hearings, the absence of a requirement to give evidence on oath, and the lack of a specific reference in the legislation to a right to cross examine witnesses giving evidence.
“There is no doubt that rectifying these issues is an area where opposition and Government are in agreement that solutions be enacted as soon as possible,” she said.