Tomasz Zalewski v The Workplace Relations Commission, an Adjudication Officer [Y], Ireland and the Attorney General

JudgeMr. Justice William M. McKechnie,Mr Justice Peter Charleton,Mr. Justice John MacMenamin,Mr. Justice O'Donnell
Judgment Date06 April 2021
Neutral Citation[2021] IESC 24
Docket NumberRecord No: S:AP:IE:2020:000066
Date06 April 2021
CourtSupreme Court
Tomasz Zalewski
An Adjudication Officer (Y), and The Workplace Relations Commission, and Ireland and The Attorney General


Buywise Discount Stores Limited
Notice Party

[2021] IESC 24

Clarke C.J.

O'Donnell J.

McKechnie J.

MacMenamin J.

Dunne J.

Charleton J.

O'Malley J.

Record No: S:AP:IE:2020:000066


Unfair dismissal – Constitutionality – Workplace Relations Act 2015 – Plaintiff challenging the constitutionality of the adjudicative process established under the Workplace Relations Act 2015 – Whether the process was unconstitutional

Facts: The appellant, Mr Zalewski, in 2016, took an unfair dismissal case against his employer, the notice party, Buywise Discount Store Ltd. A Workplace Relations Commission (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 case taken by Mr Zalewski against the respondents, the adjudication officer, the WRC, Ireland and the Attorney General, challenged the constitutionality of the procedures introduced when dispute resolution bodies were streamlined under the Workplace Relations Act 2015. In the High Court, Simons J found that the activities of the WRC did not constitute the administration of justice, due to the requirement of enforcement through the District Court. In his appeal to the Supreme Court, Mr Zalewski argued the process did involve the administration of justice and was therefore unconstitutional. The State, which opposed the appeal, accepted that the treatment of Mr Zaleswki's complaint breached his fair procedure rights but disputed that the overall process amounted to an unconstitutional administration of justice.

Held by O’Donnell J that the Court had found elements of the operations of the WRC unconstitutional, but held back from striking down the legislation underpinning the State's dispute resolution body. O'Donnell J reversed Simons J’s decision, ruling that the activities of the WRC and the Labour Court did constitute the administration of justice, as permitted under Article 37 of the Constitution. The Court found that a blanket provision that all WRC hearings must be held "otherwise than in public" was repugnant to the Constitution. O'Donnell J also criticised the lack of provision for the administration of an oath in WRC hearings. He also criticised the lack of an express provision for the right to cross-examine witnesses. The Court also dismissed suggestions that only legally trained people could carry out the duties of the WRC.

O’Donnell J stressed that the features which he considered repugnant to the Constitution were not "inevitable or central" to the operation of the 2015 Act. It would in his 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.

Judgment approved.

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 6 th day of April, 2021


. There are three issues of law which arise out of the background to these proceedings: firstly, whether the adjudication process provided for in the Workplace Relations Act 2015, insofar as it applies to determine the underlying claim of the appellant, constitutes the ‘administration of justice’ within the meaning of Article 34 of the Constitution, secondly, if it does, whether such process can successfully seek the protection of Article 37, and in either event was that process, by its actual application to the appellant and his complaint, conducted in violation of Article 40.3.1 and Article 40.3.2 of the Constitution. At a very much secondary level, the European Convention on Human Rights Act 2003, (“the 2003 Act”) was also invoked.


. Mr. Zalewski was employed by the notice party, which operated a convenience store under the franchise “Costcutter” at North Strand, Dublin, between 2012 and 2016. He went from being a security guard, to being a supervisor and later was appointed to the position of assistant manager in the store. Unfortunately, shoplifting was not uncommon, but a more serious incident occurred in October, 2014 when the shop was robbed with a gun being discharged. He commenced personal injury proceedings against his employer arising out of this incident. In April, 2016 he was reprimanded by the manager who alleged that he should have been more involved when on some occasion a known shoplifter was on the premises. A short period of sick leave followed. Subsequently, the owner's son and the manager apologised to him for the latter's conduct at such meeting. Upon returning to work his performance as assistant manager was seriously questioned, both in terms of the security of the shop and also for arranging medical and legal advice for other staff members arising out of this robbery. In addition, he was accused of having used monies from the till, in effect an allegation of dishonesty, all of which were said by the employer to constitute gross misconduct for which he was summarily dismissed. His only right of appeal, which he unsuccessfully utilised, was to the shop owner himself. The only clarification arising from that appeal was that no accusation of theft was being made against him. Otherwise, the dismissal and its summary nature was to stand.


. The appellant then instituted a claim for unfair dismissal under the Unfair Dismissals Act 1977 (as amended), and the Payment of Wages Act 1991 (as amended). The application made, pursuant to the Workplace Relations Act 2015, was assigned by the Director General of the Workplace Relations Commission (“the WRC”), established under the Act, to an Adjudication Officer, the first named respondent, who on 26 th October, 2016, held a very brief meeting at which the parties were present and/or represented. This lasted for no more than a few minutes, ten at most, at which point both parties believed that the matter had been adjourned: whilst there is some difference of understanding as to the reasons why this occurred, nothing turns on this. The real point is that neither party ever understood that the case had been in any way concluded at that stage: in fact, the contrary was their specific impression. What then followed was seriously problematic.


. By letter dated 1 st November, Mr. Zalewski was notified that the further hearing date would be the 13 th December. However, on attending, with his solicitor, at the designated place and time, they were informed by the employer's representative and immediately thereafter by the adjudication officer in person that she had already reached a decision on the dispute and that the letter had issued in error. In a document dated and published some three days later, a four-page written decision issued which on its face contained findings purportedly based on evidence and submissions: in fact it read as if a full hearing had taken place. Evidently, given the brevity and cursory nature of the only meeting previously held, this description was seriously mystifying. At the most basic level, such matters demonstrated several major deficits in the process adopted and at a general level are said by the appellant to reflect a structural and systemic failure in the operations of the adjudication process. These events, and this point in particular, will be further explored in that part of the judgment dealing with the fair procedures argument.


. The within judicial review proceedings then followed in which an order of certiorari was sought in respect of the adjudication officer's decision and also in which a challenge was made on both constitutional and convention grounds. The former claim was advanced on two bases, firstly, that the powers conferred by various provisions of the 2015 Act as well as s. 8 of the Unfair Dismissals Act 1977 (as amended), constituted the administration of justice within the meaning of Article 34 of the Constitution, and were not saved by the provisions of Article 37, and secondly, and in any event, that the actual procedures adopted by the adjudication officer violated certain specified rights of the appellant under Article 40.3.1 and 40.3.2 of the Constitution. The Convention claim sought a declaration pursuant to s. 5 of the 2003 Act, that the same statutory provisions were incompatible with Articles 6 and/or 13 of the European Convention on Human Rights.


. The quashing of the decision was not and could not, have been contested, but the constitutional argument was vigorously resisted at all levels. One such involved the State issuing a motion seeking to have that claim dismissed on the basis that since the adjudication was quashed, all other matters were moot or were otherwise of such a nature that should not be entertained by the court. In effect, this was treated by Meenan J. as a locus standi objection, with the learned judge holding that it could not be assumed that any rehearing of the complaints would suffer from the same constitutional infirmities as the original hearing had: on that basis, Mr. Zalewski was not “in real or imminent danger of being adversely affected, by the operation of the statute” ( [2018] IEHC 59). On appeal this Court, when reversing that decision, identified the key constitutional issue as being a challenge to the statutory scheme as such and not as to what an adjudication officer might or might not do in any individual case under that scheme. In effect, the appellant's submission was that he should not be forced to have his claim determined by a regime which he argued violated Articles 34 and 37 of the Constitution. Accordingly, all issues came on for hearing and were determined in a judgment delivered by Simons J. on the 21 st day of April, 2020 [2020] IEHC 178.


. Given the concession made...

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