High Court rejects test case over constitutionality of workplace dispute procedures 

A High Court judge has rejected a challenge by a man to the constitutionality of new procedures for determining workplace disputes. 
The case of Tomasz Zalewski, represented by Cian Ferriter SC and Peter Ward SC, is probably as good a “test case” as any concerning the constitutional validity of procedures under Part V of the Workplace Relations Act 2015, Mr Justice Garrett Simons observed. 
 
While dismissing the claims of unconstitutionality, the judge directed, arising from the State’s acceptance an adjudication officer’s dismissal in 2016 of Mr Zalewski’s complaints of unfair dismissal was invalid, his complaint should be decided by a different adjudication officer. 
 
Mr Zalewski, North Strand Road, Dublin 3, claims he was unfairly dismissed from his job as assistant manager at Buywise Discount Store in 2016, where he had worked since March 2012. 
 
He denied claims of alleged gross misconduct, including failing to follow policy for robbery prevention and having no interest in the success of the workplace. 
 
In May 2016, he complained to the WRC alleging unfair dismissal and non payment of wages in lieu of notice and maintained it would be necessary for him to give evidence in support of his claim and to cross-examine Buywise witnesses. 
 
A hearing at the WRC before an adjudication officer on October 26th 2016 lasted about ten minutes, involved no oral evidence or opportunity to cross-examine, and the officer accepted written submissions and documents from the sides, it was claimed. 
 
The officer stated in December 2016 she had decided against him and in a written decision dismissed his complaint. 
 
He got leave for High Court judicial review in February 2017, including to challenge the constitutionality of provisions of the 2015 Act, introduced after abolition of the previous Employment Appeals Tribunal system for adjudicating claims under the Unfair Dismissal and Payment of Wages Acts. 
 
During those proceedings, the WRC conceded the adjudication officer’s decision should be quashed because of “administrative error”. 
 
After the Supreme Court in 2018 overturned a High Court finding that Mr Zalewski lacked, arising from the WRC concession, legal standing to continue with the constitutional challenge, the matter returned to the High Court. 
 
The principal issue was whether the procedural mechanism established under the 2015 Act for resolving employment disputes involved the “administration of justice” within the meaning of Article 15 of the Constitution, with the effect they could not be decided by the WRC and were reserved for judges. 
 
In his judgment on Tuesday, Mr Justice Simons said the powers exercised by adjudication officers and by the Labour Court under the 2015 Act exhibit many characteristics of the administration of justice. 
 
Those powers involved determination of employment law disputes by way of an inter partes hearing between a claimant/employee and their employer. In an unfair dismissal claim, there was also power to award large sums or direct an employee be reinstated. 
 
“Crucially”, however, the decision making under the 2015 Act lacks one essential characteristic of the administration of justice, the ability of a decision maker to enforce its decisions, he said. An application must rather be made to a District Court to enforce the decisions. 
 
The adjudication officers and Labour Court were thus not engaged in the administration of justice, he ruled. 
 
He rejected an alternative argument the procedures prescribed under the 2015 Act are “deficient” for reasons including that adjudication officers/Labour Court members are not required to have legal qualifications and there is no “express” provision for cross-examining witnesses. 
 
There is no logical basis for saying the holder of a non-judicial office should be subject to eligibility criteria equivalent to those for judicial office, he said. There was no evidence to show absence of legal qualifications had lead to difficulties in practice, he said. 
 
 
The 2015 Act allows for cross-examination where required and the court cannot assume cross-examination will not be allowed when required, he said. 
 
On foot of those and other findings, he dismissed the challenge to the constitutional validity of the 2015 Act and directed Mr Zalewski’s unfair dismissal claims be decided by another adjudication officer. 
 
A stay applies on the relevant orders in the event of an appeal. Costs issues will be addressed later. 
 
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