IN A LANDMARK decision the Supreme Court has declared that laws placing an absolute ban on employment disputes being heard in public is unconstitutional.

The court made the declaration that certain provisions of the 2015 Workplace Relations Act are repugnant to the constitution when ruling on an appeal brought by a Polish man who claimed he was unfairly dismissed from his job at a convenience store over the constitutionality of new procedures for determining workplace disputes.

The Seven judge court on a 4 to 3 majority did not find that the process operated by the Workplace Relations Commission under the 2015 Act, including having adjudication officers determine complaints, involves the “administration of justice” reserved under the Constitution to judges, was unconstitutional.

The court’s decision is understood to have massive implications for the workings of the State’s industrial relations dispute resolution apparatus.

WRC

The appeal by Tomasz Zalewski over the treatment of his complaint alleging unfair dismissal from his job is an important test case concerning the constitutional validity of procedures under Part V of the Workplace Relations Act 2015.

In a four to three majority ruling the Chief Justice Justice Frank Clarke, Justice Elizabeth Dunne and Justice Iseult O’Malley agreed with Justice Donal O Donnell’s findings that the absolute ban on hearing of disputes in public was repugnant to the constitution.

“Approached through the lens of Article 37 of the Irish Constitution, I cannot accept that there is a justification for a blanket prohibition on hearings in public before the adjudication officer. Article 34.1 of the Constitution makes clear that public hearings are of the essence of the administration of justice,” Justice O’Donnell said.

The court said it was prepared to make a declaration to the effect that such hearing may, but not must, be held in public.

The court also deemed that he failure to have any provision including in the Act for the taking of evidence under oath by adjudication officers was also unconstitutional.

However, the majority of the court did not accept the argument that the determination of disputes by adjudication officers breached the constitution. and that it was a role that must be carried out by a judge.

The majority court of the court agreed that the jurisdiction created by the 2015 Act is not an impermissible administration of justice, amounted to a limited administration of justice and falls under Article 37 of the Constitution.

The dissenting judges were Justice William McKechnie, Justice John McMenamin and Justice Peter Charleton, who in their judgements said that the determinations allowed for under the 2015 act by adjudication offers was unconstitutional and should be struck down.

Justice Charleton, who was critical of the WRC’s treatment of Zaleswki said that a full appeal to a court from an administrative body has been abolished by the 2015 Act in favour of private hearings by administrators.

Justice is about the truth coming out, he said.

“Justice under the Constitution is about basing vindication or denial in key matters of human life within the realm of the courts, or at the very least allowing an appeal to a judge by way of a rehearing if an administrator’s verdict is fundamentally disputed.”

Curiously, the one place where all of that fairness of procedure is to be found is in a court, he added.

However, that is also the path blocked by this legislation to those who may have a fundamental need to be vindicated as to their honesty and their competence as working people, he added.

In his appeal Zaleswki, whose complaint of unfair dismissal was rejected by an adjudication officer, argued the process involves the administration of justice and was therefore unconstitutional.

The court heard that he brought judicial review proceedings arising out of his summary dismissal from his job at the store, where he had worked at between 2012 and 2016.

The matter went before an adjudications officer at the Workplace Relations Commission, which made certain findings. Those findings were overturned after leave was granted in judicial proceedings he took against the WRC; however, the constitutional aspect of his action proceeded to be heard and determined by the High Court.

The State, which opposed the appeal, accepted the treatment of Zaleswki’s complaint breached his fair procedure rights but disputed the overall process amounts to an unconstitutional administration of justice.

A finding that the procedures involve the administration of justice would have “immense” implications for other decision-making bodies outside the courts process, the state represented by Paul Gallagher SC argued.

Zalewski, North Strand Road, Dublin 3, represented by Peter Ward SC and Cian Ferriter SC, had argued the procedures under the 2015 Act for dealing with unfair dismissal claims, and claims for payment in lieu of notice, amounts to the “administration of justice” under Article 34 of the Constitution were properly reserved to judges.

The 2015 Act was introduced after abolition of the previous Employment Appeals Tribunal system for adjudicating claims under the Unfair Dismissal and Payment of Wages Acts.

An adjudication officer in 2016 dismissed Zalewski’s complaint of being unfairly dismissed from his job as assistant manager of the Costcutter Store on Dublin’s North Strand Road, where he had worked for four years.

His appeal was against last year’s finding by the High Cout that while powers exercised by adjudication officers and the Labour Court under the 2015 Act exhibit “many characteristics” of the administration of justice, they lack an essential characteristic, a decision maker’s ability to enforce its decisions, because an application must be made to a District Court to enforce.

Arising from the State’s acceptance the dismissal of Zalewski’s complaint was invalid, Justice Garrett Simons directed it should be decided by a different adjudication officer.

The judgement was delivered electronically and the Supreme Court will deal with any issue arising out of its decision later this month.