Zalewski v Adjudication Officer

• Jurisdiction: Ireland
• Judge: Ms. Justice Finlay
• Judgment Date: 20 March 2019
• Neutral Citation: [2019] IESC 17
• Court: Supreme Court
• Docket Number: [Appeal No: 2018/45]
• Date: 20 March 2019

[2019] IESC 17

THE SUPREME COURT

Finlay Geoghegan J.

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Finlay Geoghegan J.

[Appeal No: 2018/45]

Between/

Tomasz Zalewski

Applicant/Appellant

and

Adjudication Officer (Rosaleen Glackin), The Workplace Relations Commission, Ireland

and

the Attorney General

Respondents

and

Buywise Discount Store Limited

Notice Party

Locus standi – Constitutional challenge – Unfair dismissal – Appellant seeking to pursue a challenge to the constitutionality of certain sections of the Workplace Relations Act 2015 and the Unfair Dismissals Act 1977 – Whether the appellant had locus standi to pursue the constitutional challenge

Facts: The appellant, Mr Zalewski, appealed to the Supreme Court from an order of the High Court (Meenan J) made on 13 March 2018, for the reasons set out in two written judgments delivered on 8 February 2018 ([2018] IEHC 59) and 13 March 2018 ([2018] IEHC 156). The first judgment determined the locus standi issue and the second related only to costs. This appeal concerned the requisite locus standi to pursue a challenge to the constitutionality of certain sections of the Workplace Relations Act 2015 and the Unfair Dismissals Act 1977. The challenge was in reliance on Articles 34.1 and 37.1 and also Article 40.3 of the Constitution. The core submission of the appellant was that, as a person who had made a claim that he had been unfairly dismissed within the meaning of the 1977 Act and to the remedies provided by that Act and to unpaid wages in lieu of notice under the Payment of Wages Act 1991, that he had locus standi to challenge the constitutionality of provisions of the 1977 Act and the 2015 Act which require those claims to be determined by an adjudication officer of the second respondent, the Workplace Relations Commission (WRC) and on appeal by the Labour Court. He submitted that as a person who was about to have his claims for redress and compensation for his alleged unfair dismissal and unpaid wages determined in accordance with a statutory scheme which he contended was inconsistent with the Constitution, he was in real and imminent danger of being adversely affected by the operation of the relevant provisions of the 2015 Act and the 1977 Act.

Held by Finlay Geoghegan J that the appellant did have locus standi to pursue the constitutional challenge.

Finlay Geoghegan J held that the appeal should be allowed.

Appeal allowed.

Judgment of Ms. Justice Finlay Geoghegan delivered on the 20th day of March, 2019.

1 This appeal concerns the requisite locus standi to pursue a challenge to the constitutionality of certain sections of the Workplace Relations Act 2015 (‘the 2015 Act’) and the Unfair Dismissals Act 1977 (‘the 1977 Act’), as amended. The challenge is in reliance on Articles 34.1 and 37.1 and also Article 40.3 of the Constitution.

2 The appeal is from an order of the High Court (Meenan J.) made on 13 March 2018, for the reasons set out in two written judgments delivered on 8 February 2018: [2018] IEHC 59 and 13 March 2018: [2018] IEHC 156. The first judgment determined the locus standi issue and the second relates only to costs.

Background Facts

3 The facts relevant to the issues on this appeal are not in dispute. They are set out in the High Court judgment and it is sufficient to outline the facts relevant to the issue in this appeal. The appellant was dismissed from his employment with the notice party in April 2016. He made a claim of unfair dismissal under the 1977 Act and a claim for non-payment of money in lieu of notice under the Payment of Wages Act 1991as amended (‘the 1991 Act’). The claims are made pursuant to rights conferred by the 1977 Act and the 1991 Act and, as required by the statutes, the complaints were referred to the Workplace Relations Commission (‘the WRC’) pursuant to the provisions of the 1977, 1991 and 2015 Acts.

4 The appellant was notified of a hearing before the first named respondent, the Adjudication Officer, on 26 October 2016. The hearing was opened by the Adjudication Officer, who accepted written submissions and documentation. An application was then made to adjourn the hearing in circumstances where a witness for the employer was not available. No evidence was heard. The adjournment was granted but the Adjudication Officer was not in a position to fix the date of the adjourned hearing.

5 A hearing date of 13 December 2016 was subsequently fixed to hear evidence. However, on that date, when the appellant and his lawyers attended the hearing, he was informed that the Adjudication Officer had already issued her decision in relation to his claims the previous week and that the hearing that morning had been scheduled in error.

6 A written decision in respect of the appellant's claim was issued by the Adjudication Officer on 16 December 2016, in which she recorded that she gave the parties an opportunity to present evidence and ‘on the basis of the evidence and written submissions’ made findings and held inter alia that the complaint of unfair dismissal was not well founded. She also dismissed the claim pursuant to the 1991 Act. A protective appeal to the Labour Court was lodged on behalf of the applicant on 25 January 2017, without prejudice to the judicial review proceedings.

Judicial Review Proceedings

7 By order of the High Court (Noonan J.) made on 20 February 2017, leave was granted to seek all the reliefs sought at para. (d) of the statement of grounds dated 20 February 2017, on all the grounds set out at para. (e) therein.

8 The first three reliefs sought were declarations in the following terms:-

‘(i) A Declaration that section 40 and/or section 41 and/or section 42 and/or section 43 and/or section 44 and/or section 45 and/or section 47 and/or section 48 of the Workplace Relations Act 2015, as amended and/or section 8 of the Unfair Dismissals Act 1977, as amended, are invalid having regard to the provisions of the Constitution and in particular Article 34.1 and Article 37.1 thereof.

(ii) A Declaration that the powers and functions granted to an Adjudication Officer pursuant to the provisions of the Workplace Relations Act 2015, as amended, constitute the administration of justice, and/or the discharge of constitutional functions and powers of a judicial nature, for the purposes of Article 34 of the Constitution which are not limited within the meaning of Article 37 of the Constitution, such that the provisions of the Workplace Relations Act 2015 in relation to Adjudication Officers (including, inter alia, sections 40, 41, 42, 43 and 44 thereof) are invalid having regard to the provisions of the Constitution and in particular articles 34 and 37 thereof.

(iii) Further and/or in the alternative, a Declaration that section 40 and/or section 41 and/or section 42 and/or section 43 and/or section 44 and/or section 45 and/or section 47 and/or section 48 of the Workplace Relations Act 2015 and/or section 8 of the Unfair Dismissal Act 1977 (as amended by section 80 of the Workplace Relations Act 2015) are invalid having regard to the provisions of the Constitution in failing to respect and vindicate the Applicant's right to constitutional justice and fair procedures, pursuant to the provisions of Article 34.1 and Article 37.1 and Article 40.3.1 and Article 40.3.2 of the Constitution, in the determination of his proceedings pursuant to the provisions of the Unfair Dismissals Act 1977 (as amended) and the Payment of Wages Act 1991 (as amended).’

9 The next relief sought was an order of certiorari quashing the decision of the Adjudication Officer of 16 December 2016. That was sought as consequent upon the preceding declarations. Thereafter a declaration was sought, if necessary, pursuant to s. 5 of the European Convention on Human Rights Act 2003 (‘the 2003 Act’), that the same sections of the 2015 Act and 1997 Act were incompatible with Articles 6 and/or 13 of the European Convention on Human Rights. Finally, an injunction was sought prohibiting any further steps being taken in the appeal and a claim for damages was included.

10 Paragraph (e) of the statement of grounds includes detailed grounds upon which it is contended that the identified sections of the 2015 Act and the 1977 Act are invalid having regard to the provisions of the Constitution and in particular, Articles 34 and 37. The statement of grounds is verified by the appellant and in addition, an affidavit was sworn by his solicitor verifying certain of the facts in relation to the treatment of the appellant's claim before the first and second named respondents and also other facts relating to his experience in other claims before the WRC.

11 No notice of opposition has been filed by or on behalf of the respondents or notice party. The solicitor for the respondents issued a letter dated 4 April 2017, in which it was accepted that the adjournment was granted by the Adjudication Officer on 26 October 2016 for the purpose of enabling a witness to give evidence and stated that after the conclusion of that hearing, the Adjudication Officer ‘in error filed the complaint as a “Decision to Issue” rather than “Adjourned to further Hearing”’. The letter also stated that the Adjudication Officer subsequently prepared her decision to enable it issue within 28 days and identified each of these as an ‘administrative error on the part of the Adjudication Officer’, which her clients sincerely regretted.

12 It was accepted that the decision of 16 December 2016 could not stand and must be set aside. The letter then stated:-

‘… In those circumstances, I am instructed to consent to an Order being made in the following terms on the return date of 25 April 2017:

1. An order of certiorari quashing the Decision.

2. An order remitting the complaint of Tomasz Zalewski bearing the Complaint Reference Numbers CA-0004535-001 and CA-00004535-002 to the Workplace Relations...