Zalewski v The Workplace Relations Commission

CourtHigh Court
Docket Number2017 No. 146 J.R.
JudgeGarrett Simons J.
Judgment Date2020
JurisdictionIreland
Neutral Citation[2020] IEHC 178

[2020] IEHC 178

THE HIGH COURT

JUDICIAL REVIEW

Garrett Simons J.

2017 No. 146 J.R.

BETWEEN
TOMASZ ZALEWSKI
APPLICANT
AND
THE WORKPLACE RELATIONS COMMISSION
AN ADJUDICATION OFFICER (ROSALEEN GLACKIN)
IRELAND

AND

THE ATTORNEY GENERAL
RESPONDENTS
BUYWISE DISCOUNT STORES LIMITED
NOTICE PARTY

Judicial review – Unfair dismissal – Procedure – Applicant seeking judicial review – Whether an adjudication upon the applicant’s claims for unfair dismissal and payment in lieu of notice was reserved to a court of law

Facts: Buywise Discount Store Ltd, by letter dated 26 April 2016, had purported to dismiss the applicant, Mr Zalewski, from his employment as a supervisor of a convenience store. The applicant instituted (i) a claim for unfair dismissal pursuant to the Unfair Dismissals Act 1977, and (ii) a claim for payment in lieu of notice pursuant to the Payment of Wages Act 1991. These claims were presented to the Director General of the first respondent, the Workplace Relations Commission, and were duly referred to the second respondent, Ms Glackin, an adjudication officer, pursuant to s. 41 of the Workplace Relations Act 2015 and s. 8 of the Unfair Dismissals Act 1977. The adjudication officer issued a purported decision on 16 December 2016, dismissing the claims. Following on from that decision, the applicant instituted judicial review proceedings. The principal dispute between the parties was as to the appropriate procedure by which these claims should be heard and determined. The applicant maintained that an adjudication upon the claims involved the administration of justice, and, as such, was reserved to a court of law. Conversely, the State respondents contended that the resolution of such disputes has properly been entrusted, under the 2015 Act, to adjudication officers, in the first instance, with a right of appeal thereafter to the Labour Court.

Held by the High Court (Simons J) that the applicant’s contention that the determination of (i) a claim of “unfair dismissal”, and (ii) a claim for payment in lieu of notice, are matters which are properly reserved to judges appointed in accordance with the Constitution was not made out. Simons J held that the applicant’s alternative argument to the effect that the procedures prescribed under the 2015 Act are deficient was also not well founded. Simons J therefore dismissed the constitutional challenge to the validity of the 2015 Act.

Simons J noted that the State respondents had already conceded that the decision made on 16 December 2016 should be set aside by an order of certiorari. Simons J proposed making an order to that effect, and remitting the claims pursuant to the 1977 Act and the 1991 Act to the Director General of the Workplace Relations Commission to be referred to another adjudication officer for rehearing. Simons J held that a stay would be placed on these orders for twenty-eight days pending the making of an appeal to the Court of Appeal or the making of an application for leave to appeal to the Supreme Court. Simons J held that the stay would continue pending the determination of any appeal made. Simons J requested that the parties correspond with each other on the question of the appropriate costs order. In default of agreement between the parties on the issue, Simons J held that short written submissions should be filed in the Central Office within fourteen days.

Order of certiorari granted.

JUDGMENT of Mr. Justice Garrett Simons delivered on 21 April 2020
INTRODUCTION
1

The principal issue for determination in these proceedings is whether the procedural mechanisms for the resolution of employment disputes, which have been established under the Workplace Relations Act 2015, involve the administration of justice within the meaning of Article 34 of the Constitution. It is the Applicant's case that the determination of (i) a claim of “unfair dismissal,” and (ii) a claim for payment in lieu of notice, are matters which are properly reserved to judges appointed in accordance with the Constitution. The Workplace Relations Act 2015 is said to be invalid in circumstances where it has purported to confer these decision-making functions upon a non-judicial body, namely adjudication officers appointed by the Minister for Jobs, Enterprise and Innovation. The alleged invalidity is said to extend equally to the body designated to hear appeals from the adjudication officers, namely, the Labour Court.

2

This challenge to the validity of the legislation has been strongly contested on behalf of the State respondents. The grounds of opposition will be considered in detail presently. For introductory purposes, however, it may be helpful to highlight the following two arguments made on behalf of the State respondents. First, it is said that a decision of an adjudication officer lacks the character of a binding determination. If a claimant-employee wishes to enforce the decision, it is necessary to apply to the District Court to do so. The necessity to have recourse to the judicial power to enforce a decision is, it is said, fatal to the argument that the adjudication officers are themselves carrying on the administration of justice. Secondly, it is said that employment disputes have not traditionally been regarded as justiciable. Put otherwise, employment disputes have not traditionally fallen within the purview of the courts.

3

In addition to his principal contention that the Workplace Relations Act 2015 is invalid by reference to Article 34 of the Constitution, the Applicant makes an argument, in the alternative, to the effect that the procedures prescribed under the Act are deficient. In particular, complaint is made that there is no provision for the taking of evidence on oath or affirmation; no express provision for the cross-examination of witnesses; and the hearings before the adjudication officers take place in private. Complaint is also made that there is no requirement for adjudication officers to hold a legal qualification.

STRUCTURE OF JUDGMENT
4

This judgment is divided into four parts as follows. Part I sets out the factual background, the procedural history and provides an overview of the relevant legislative provisions. Part II addresses the Applicant's principal argument, namely that the decision-making under the Workplace Relations Act 2015 represents the administration of justice for the purposes of Article 34 of the Constitution. Part III addresses the Applicant's alternative argument, namely that the procedures under the Workplace Relations Act 2015 are deficient, and in breach of the Applicant's personal rights under Article 40.1 of the Constitution. A related argument, made by reference to the European Convention on Human Rights, is also addressed under this Part. Finally, Part IV of the judgment will set out a summary of the conclusions.

ABBREVIATIONS AND SHORTHAND
5

Where convenient, the following abbreviations will be used in this judgment.

Workplace Relations Act 2015 WRA 2015

Unfair Dismissals Act 1977 UDA 1977

6

Unless expressly stated, any references in this judgment to the functions and powers of an adjudication officer should be understood as being equally applicable to the functions and powers of the Labour Court. Distinctions between the two tiers of decision-making will, however, be relevant to the discussion of certain issues, such as the power to take evidence on oath and the requirement for a public hearing. These distinctions will be explained in the context of the more detailed discussion.

PART I
FACTUAL BACKGROUND
7

The within challenge to the constitutional validity of the Workplace Relations Act 2015 has its genesis in the purported dismissal of the Applicant by his former employer, Buywise Discount Store Ltd. ( “the employer”). By letter dated 26 April 2016, the employer had purported to dismiss the Applicant from his employment as a supervisor of a convenience store. The Applicant instituted (i) a claim for unfair dismissal pursuant to the Unfair Dismissals Act 1977, and (ii) a claim for payment in lieu of notice pursuant to the Payment of Wages Act 1991. These claims were presented to the Director General of the Workplace Relations Commission, and were duly referred to an adjudication officer (Ms Rosaleen Glackin) pursuant to section 41 of the WRA 2015 and section 8 of the UDA 1977. The adjudication officer issued a purported decision on 16 December 2016, dismissing the claims. (The circumstances leading up to the making of that purported decision are discussed below). Following on from that decision, the Applicant instituted these judicial review proceedings.

8

This judgment is not concerned with the underlying merits of the claims for unfair dismissal and for payment in lieu of notice. Rather, the principal dispute between the parties to these judicial review proceedings is as to the appropriate procedure by which these claims should be heard and determined. The Applicant maintains that an adjudication upon the claims involves the administration of justice, and, as such, is reserved to a court of law. Conversely, the State respondents contend that the resolution of such disputes has properly been entrusted, under the Workplace Relations Act 2015, to adjudication officers, in the first instance, with a right of appeal thereafter to the Labour Court.

9

Given that the underlying merits of the claim for unfair dismissal and for payment in lieu of notice are not before this court, it is not necessary—nor, indeed, appropriate—to discuss the claim in any detail. There are, however, three aspects of the claim which are potentially relevant to the constitutional issues the subject-matter of these proceedings, as follows.

10

First and foremost, the Applicant is aggrieved by the manner in which his claim had been dealt with by the adjudication officer to whom it had initially been referred. The sequence of events in this regard is said to be indicative...

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