Zalewski v Adjudication Officer & Ors 2019

 On 20 March 2019, the Supreme Court held that Mr. Tomasz Zalewski has the requisite locus standi to pursue his constitutional challenge in relation to certain provisions of the Workplace Relations Act 2015 and the Unfair Dismissals Act 1977, as amended. Mr. Zalewski’s constitutional challenge will now proceed in the High Court.

Mr. Zalewski’s challenge relates to the constitutionality of the following procedures of the Workplace Relations Commission (the “WRC”):

1. an adjudication officer is not required to have any particular qualification (and, in particular, no legal qualification). Mr. Zalewski contends that a court should determine any such claims;                            
2. an adjudication officer is not permitted to take evidence under oath. Mr. Zalewski contends that this is in breach of constitutional justice and fair procedures;
3. hearings are held otherwise than in public;
4. there is no penalty for any person who gives untrue evidence; and
5. the appeals process lies with a body (the Labour Court) which does not require persons to be legally qualified.

Background

This decision arose out of claims made by Mr. Zalewski to the WRC in 2016.  Mr. Zalewski made claims of unfair dismissal and non-payment of wages in lieu of notice.  At the hearing, the adjudication officer accepted written submissions and documentation. An application was then made to adjourn the hearing because a witness for the employer was not available.  No evidence was heard.  An adjournment was granted but a date was not set for the adjourned hearing.

At the adjourned hearing, Mr. Zalewski was informed that a decision had already been issued and that the hearing that morning had been scheduled in error.  A written decision was issued a few days later in which it was stated that the parties were given an opportunity to present evidence and on the basis of the evidence and written submissions, the complaints were not well founded.

Mr. Zalewski subsequently lodged an appeal to the Labour Court. In parallel to this, Mr. Zalewski also sought and was granted leave to seek judicial review.

The High Court accepted the WRC’s submission that it would annul its decision and make arrangements for a new hearing before a different adjudication officer.  However, the High Court refused to allow Mr. Zalewski to pursue a constitutional challenge against the WRC procedures outlined above on the basis that in returning the claims for hearing before a different adjudication officer, Mr. Zalewski was not in danger of being adversely affected.

Mr Zalewski sought to appeal the second element of the High Court’s decision and leave was ultimately granted to appeal against the order of the High Court to the Supreme Court.

The future of the WRC

If Mr. Zalewski is successful in his constitutional challenge, this would likely delay the workings of the WRC until such a time as any procedural issues are resolved.  Inevitably, legislation would need to be introduced to implement any of Mr. Zalewski’s challenges.  While the changes requested may not necessarily be without merit and could ensure more strategic and legally driven decisions, it could result in the WRC reverting to the extensive delays which the Employment Appeals Tribunals once had.
http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/f6662da303a4e0a5802583c300583632?OpenDocument 

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