Zalewski v Adjudication Officer (Rosaleen Glackin)

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 08 February 2018
• Neutral Citation: [2018] IEHC 59
• Docket Number: [2017 No. 146 J.R.]
• Court: High Court
• Date: 08 February 2018

BETWEEN

TOMASZ ZALEWSKI

APPLICANT

AND

ADJUDICATION OFFICER (ROSALEEN GLACKIN), THE WORKPLACE RELATIONS COMMISSION IRELAND

AND

THE ATTORNEY GENERAL

RESPONDENTS

AND

BUYWISE DISCOUNT STORE LIMITED

NOTICE PARTY

[2018] IEHC 59

[2017 No. 146 J.R.]

THE HIGH COURT

JUDICIAL REVIEW

Constitutional validity - Judicial review - Locus standi - Applicant seeking declarations that certain sections of the Workplace Relations Act 2015 are invalid having regard to the provisions of the Constitution - Whether applicant had locus standi to seek reliefs

Facts: The applicant, Mr Zalewski, was dismissed from his employment with the notice party, Buywise Discount Store Ltd. He submitted a complaint in respect of both a claim for unfair dismissal and a claim for alleged non-payment of money in lieu of notice. He instituted proceedings under the Unfair Dismissals Act 1977 and the Payment of Wages Act 1991. This entailed an application to the second respondent, the Workplace Relations Commission (WRC) for hearing before an adjudication officer, pursuant to the provisions of the Workplace Relations Act 2015. The first respondent, the Adjudication Officer, in a written decision of 16th December, 2016, declared that the complaint of unfair dismissal was not well founded. By order of the High Court dated 20th February, 2017, the applicant was granted leave to seek judicial review. The reliefs sought were: (a) declarations that certain sections of the 2015 Act are invalid having regard to the provisions of the Constitution, in particular Article 34.1, Article 37.1, Article 40.3.1 and Article 40.3.2, and a declaration pursuant to the provisions of s. 5 of the European Convention on Human Rights Act 2003 that certain sections of the 2015 Act are incompatible with the State's obligations under the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in particular Articles 6 and 13 thereof; (b) consequent on the declarations sought above, an order ofcertiorariquashing the decision of 16th December, 2016, and certain further orders. Having conceded that the applicant was entitled to an order ofcertiorariquashing the decision of 16th December, 2016, the respondents sought an order from the High Court dismissing the relief sought by the applicant to challenge the constitutional validity of the 2015 Act, submitting that having conceded that the applicant was entitled to an order ofcertiorarihe no longer had "locus standi" to seek reliefs concerning the Constitution and the 2003 Act. The respondents relied uponCahill v Sutton[1980] IR 269.

Held by Meenan J that, referring toCahill v Sutton, a particular set of facts is required against which a court can determine an issue of constitutionality. Meenan J held that no such facts existed in this case, given the inevitable concession by the respondents that they could not stand over the decision of December 16th, 2016. Meenan J could not conclude that in returning the applicant's case to the WRC he was thereby, in the words ofCahill v Sutton, "in real or imminent danger of being adversely affected by the operation of the statute".

Meenan J held that the applicant did not havelocus standito challenge the constitutional validity of certain provisions of the 2015 Act or maintain a claim under the provisions of the 2003 Act.

Judgment approved.

JUDGMENT of Mr. Justice Meenan delivered on the 8th day of February, 2018.

Background:

1 The applicant commenced employment with the notice party, as a security guard, on or around 31st March, 2012. In December 2014 he was assigned the position of supervisor in a store. He was subsequently promoted to the position of assistant manager.

2 Subsequently the applicant was dismissed from his employment with the notice party in circumstances which he set out in detail in his affidavit grounding this application. It is not necessary to detail those circumstances here. However, following his dismissal the applicant consulted Mr. Eamon O'Hanrahan of EM O'Hanrahan Solicitors on or about May 2016, seeking advice on legal remedies that may be available, including a claim for unfair dismissal pursuant to the Unfair Dismissals Act, 1977 (as amended).

3 Having received advice, the applicant decided to submit a complaint in respect of both a claim for unfair dismissal and a claim for alleged non payment of money in lieu of notice. This required the applicant to institute proceedings under the Unfair Dismissals Act, 1977 (as amended) and the Payment of Wages Act, 1991 (as amended). This would entail an application to the Workplace Relations Commission (hereinafter the WRC) for hearing before an adjudication officer, pursuant to the provisions of the Workplace Relations Act, 2015 ('the Act of 2015').

Proceedings before the WRC:

4 The applicant maintained that in order for his unfair dismissal and unpaid notice claims to be fairly determined it would be necessary for him to be afforded the opportunity to give evidence in respect of his claim and also have the opportunity, through his legal representative, to test the evidence adduced on behalf of his employer, the notice party, including cross examination of any witnesses.

5 The first named respondent ('Adjudication Officer') was assigned to hear the applicant's claim. Submissions on behalf of the applicant were furnished by his solicitor under cover of email dated 15th September, 2016. In the course of submissions it was made clear that the applicant was anxious to have the opportunity to cross examine all witnesses appearing on behalf of the notice party and it was specifically stated that objection was being taken to any hearing based exclusively on written submissions. Subsequently the notice party furnished a written submission.

6 A hearing was scheduled to take place on 26th October, 2016. The applicant attended with his solicitor. The notice party was also represented. The Adjudication Officer proceeded to clarify the names of the parties, the dates of employment and pay details. The Adjudication Officer then inquired as to whether the applicant was in receipt of social welfare payments. It was confirmed that he was in receipt of Jobseeker Allowance benefits and the Adjudication Officer asked the applicant's solicitor to obtain documentation from the Department of Social Protection to confirm the position.

7 The hearing before the Adjudication Officer then commenced with an outline being given by the notice party of its case. However, the solicitor for the applicant objected stating that any factual evidence should be given by the appropriate witness. At that point, the notice party's representative requested an adjournment of the hearing on the grounds that a particular witness was not present and could not be in attendance for family reasons. On hearing this, the solicitor for the applicant stated that he had no objection to an adjournment of the hearing. The Adjudication Officer agreed to adjourn the case and dates for a further hearing were considered.

8 Subsequently, a hearing date of 13th December, 2016 was fixed to hear evidence of the applicant's claims.

Hearing on 13th December, 2016:

9 On 13th December, 2016 the applicant attended at the hearing which was scheduled to commence at 11.30am. The applicant's solicitor was then approached by a representative of the notice party, who indicated that she wished to speak with him. The solicitor for the applicant was informed by the representative of the notice party that she had been informed by the Adjudication Officer's receptionist that the Adjudication Officer had already issued her decision in relation to the applicant's claim and that the hearing that morning had been scheduled in error.

10 At that point, the Adjudication Officer walked into the corridor where the solicitor for the applicant was speaking with the representative of the notice party. The Adjudication Officer apologised that the hearing date had been assigned in error. She stated that she had issued her decision the previous week and that the scheduling office had made an error in arranging the hearing that morning. The Adjudication Officer then encountered the applicant and spoke to him in words to the effect that 'it was a pity we had all come down that morning for nothing'. She apologised, stating that she had already heard the case on the last occasion.

11 The decision was issued in writing by the Adjudication Officer dated 16th December, 2016.

Written decision of 16th December, 2016:

12 The written decision of 16th December, 2016 contains the following:-

(i) 'Date of adjudication hearing: 26th October, 2016'

(ii) 'Procedure:

In accordance with s. 41(4) of the Workplace Relations Act, 2015 and s. 8(1B) of the Unfair Dismissals Act, 1977 and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence...