2021/35 Supreme Court rules on constitutionality of Workplace Relations Commission (IR)

Laura Ryan

Laura Ryan is an Associate at Mason Hayes & Curran.

2021/35 Supreme Court rules on constitutionality of Workplace Relations Commission (IR)

By a majority of 4-3, the Supreme Court of Ireland has held that the Workplace Relations Commission’s power to adjudicate disputes between employers and employees was not unconstitutional. However, the majority of the Supreme Court did find that certain aspects of the Commission’s procedures were unconstitutional, namely the blanket ban on public hearings and the lack of capacity for taking evidence on oath. The Workplace Relations Act 2015 and the Workplace Relations Commission procedures have consequently been amended to address these issues. This case report is a follow-up on EELC 2020/34.

Summary

By a majority of 4-3, the Supreme Court of Ireland has held that the Workplace Relations Commission’s power to adjudicate disputes between employers and employees was not unconstitutional. However, the majority of the Supreme Court did find that certain aspects of the Commission’s procedures were unconstitutional, namely the blanket ban on public hearings and the lack of capacity for taking evidence on oath. The Workplace Relations Act 2015 and the Workplace Relations Commission procedures have consequently been amended to address these issues. This case report is a follow-up on EELC 2020/34.

Introduction

Prior to the enactment of the Workplace Relations Act 2015 (the ‘2015 Act’), a variety of mechanisms for the resolution of individual employment rights had been provided on an ad hoc and sometimes incoherent basis with multiple points of entry and diverse routes of appeal. The purpose of the 2015 Act was for all employment rights disputes to be dealt with by adjudication officers of the newly established Workplace Relations Commission (WRC) with a right of appeal to the Labour Court.The 2015 Act was generally welcomed, although some sections of the legal profession expressed concern that unfair dismissal cases would now be heard in private by persons with no legal qualifications and whose decisions would be anonymised. Before the 2015 Act, such cases would have been held in public before a three-person tribunal, whose chair would have had a professional legal qualification, with decisions being issued in the name of the parties.

Facts

In this case, the applicant instituted claims for unfair dismissal and payment in lieu of notice with the WRC after he was purportedly dismissed from his employment. A hearing had commenced in front of an adjudication officer and written submissions and documentation had been submitted. Thereafter, the matter was adjourned to allow for the attendance of a witness for the employer. However, when the parties attended on the adjourned date they were informed that a decision had already been issued and the applicant’s claims had been dismissed.The applicant initiated judicial review proceedings claiming that these circumstances were indicative of systemic or structural failings in the operation of the adjudication process provided for under the 2015 Act.The applicant sought an order of certiorari quashing the decision of the WRC and also sought declarations that:

certain provisions of the 2015 Act (and of the Unfair Dismissals Act 1977) were invalid, particularly because the powers and functions granted to adjudication officers and the Labour Court in deciding employment claims constituted the administration of justice, and thus ought to have been carried out by the judiciary;
the procedures in the WRC were invalid as they failed to respect his rights to constitutional justice and fair procedures.

The WRC accepted there had been an ‘administrative error’ and proposed to the applicant that the matter be disposed of with his consent by an order quashing the decision and remitting it to be heard by a different adjudication officer. The applicant refused.

Judgment of the High Court

The WRC does not exercise judicial functions

(a)

The High Court held that the fact the WRC does not have the ability to enforce its own decisions meant the WRC was not exercising judicial functions and therefore was not involved in the administration of justice.

The statutory procedures of the WRC are unconstitutional

(b)

The applicant was unsuccessful in each of the four arguments put forward in this regard as follows:

That adjudication officers and members of the Labour Court are not required to have legal qualifications, training or experience: The High Court found that it was not necessary for officers of a body whose decision-making falls outside the administration of justice to have the type of legal qualifications required of people being appointed to carry out a judicial function.
That adjudication officers cannot take evidence on oath or affirmation: The High Court noted that the requirements of constitutional justice existed on a spectrum and held that there was no requirement that evidence in claims of unfair dismissal be sworn, particularly as if the entire decision-making procedure was taken in the round, sworn evidence could be taken by the Labour Court on appeal.
That the legislation did not expressly provide for a right to cross-examine witnesses which rendered it in breach of fair procedures: The High Court found there was nothing in the legislation that excluded a right to cross-examine, and the presumption of constitutionality meant that adjudication officers are presumed to allow for cross-examination in cases where it was so required. If they failed to do so, it would represent a good ground for judicial review; therefore express provision was not required.
That the fact that hearings before adjudication officers were heard in private breached his rights under both the Constitution and Article 6 of the European Convention on Human Rights: The High Court held that even in the case of the judiciary administering justice there were exceptions to the requirement that this be done in public on the basis that sometimes the loss of privacy was too high of a price to pay. In this regard, the judge noted that, although the hearings were in private, the anonymised WRC decisions were published, and that an acceptable compromise had been reached between the privacy of claimants and the requirement of publicity of the reasoning of the decision maker. Again, the judge noted that appeals from the WRC heard by the Labour Court were held in public and thus, looking at the process as a whole, if there was such a requirement, it was met.

Majority judgment of the Supreme Court

The WRC exercises limited judicial functions

(a)

The Supreme Court reversed the High Court decision, unanimously ruling that the activities of the WRC and the Labour Court did constitute the exercise of judicial functions. The majority of the Court held, however, that it was a limited administration of justice, which is permitted under Article 37 of the Irish Constitution, allowing for limited judicial functions and powers to be conferred on statutory bodies such as the WRC.

Certain aspects of the WRC procedures are unconstitutional

(b)

O’Donnell J then addressed the issues relating to the impugned procedural matters contained in the 2015 Act as follows:

Whether determinations under the 2015 Act should only be made by persons with legal qualifications, training or experience: O’Donnell J rejected the view that the WRC should only be staffed by persons with formal legal training and sufficient legal experience to be appointed judges. He noted that those decisions of adjudication officers with which he was familiar showed a detailed understanding of the relevant law and a careful assessment of the facts of the case. While adjudication officers may be required to make decisions involving complex areas of employment law, he said, from a constitutional standpoint, that there was no justification for insisting on a law degree or experience as a practising lawyer as an essential qualification.
Whether the fact that adjudication officers did not have the capacity to take evidence on oath or affirmation was unconstitutional: The Supreme Court were agreed that the significance of giving evidence on oath or affirmation was that it triggered the power to punish for false evidence, which gave an incentive to provide truthful testimony. In circumstances where there was a serious and direct conflict of evidence, the giving of evidence on oath or affirmation and the possibility of prosecution for false evidence was an important part of ensuring justice was administered. As such, the Court held that it was unconstitutional that adjudication officers did not have the capacity to take evidence on oath or affirmation.
Whether the absence of an express provision in the 2015 Act for the right to cross-examine witnesses was unconstitutional: The Supreme Court was critical of this absence, as it appeared deliberate and directed towards discouraging cross-examination. O’Donnell J held, however, that the absence of an express reference in the 2015 Act did not render the 2015 Act unconstitutional. This was because the right to cross-examine forms part of an individual’s right to fair procedures as enshrined within the Constitution and there was a presumption that adjudication officers would operate consistently within the Constitution.
Whether it was constitutional that all hearings before adjudication officers would be heard in private: The Supreme Court agreed that the blanket requirement for adjudication hearings to be held in private was unconstitutional and that public hearings were “of the essence of the administration of justice”. O’Donnell J stated this did not mean all hearings had to be held in public, as there may be circumstances in which private hearings were justified, but he said that it was not possible to justify an absolute ban on public hearings.

The Supreme Court held that these findings should not have any impact on previous or current cases before the WRC, except that hearings from the date of the decision would be heard in public and that if an adjudication officer was of the view that evidence on oath was required the proceedings would be adjourned until the introduction of amendments to the legislation. Even though the applicant failed in his challenge to the constitutional validity of the entirety of the adjudication process, the combination of the public interest nature of the proceedings and the significant success which he had achieved warranted that he be awarded his full legal costs in both the High Court and the Supreme Court.

Commentary

The Supreme Court’s majority judgment confirms that the WRC’s power to adjudicate disputes is not unconstitutional. However, its findings that specific aspects of the WRC procedures were unconstitutional meant there was need for legislative amendments to enable the WRC to continue to function in line with the Constitution. This resulted in some WRC hearings being postponed until amendments to the 2015 Act were finalised. This was particularly the case where there was a serious and direct conflict of evidence and the adjudication officer determined that witnesses would be required to give sworn evidence.On 29 July 2021, the Workplace Relations (Miscellaneous Provisions) Act 2021 came into effect. This new legislation amends the 2015 Act, and other legislative provisions, to allow for public hearings and the publication of party names in decisions of the WRC unless ‘special circumstances’ warrant otherwise. It makes provision for adjudication officers to take evidence on oath or affirmation and also addresses concerns expressed by the Supreme Court as to the independence of adjudication officers and members of the Labour Court.As a result of the Supreme Court decision and the amendments to the 2015 and other Acts, the shift from private hearings and anonymised decisions to public hearings and decisions where the parties are named will change the manner in which employment disputes are dealt with significantly. The threat of a public claim may serve either as an additional negotiation tool or as a barrier because the potential reputational harm will undoubtedly be a guiding factor for both employees and employers. It might therefore encourage more parties to engage with the confidential mediation service provided by the WRC as an alternative to adjudication.

Comments from other jurisdictions

Italy (Caterina Rucci, Katariina’s Gild): This is a very interesting case about alternative dispute resolution in employment cases. The Irish Court gave an accurate analysis and comment on the characteristics that the Workplace Relations Commission (WRC) had compared to normal public hearings.Italy has a long history of diffidence concerning alternative dispute resolution, especially at a workplace level, and this because historically these Commissions were always suspected (and often with reason) to have a too close a relationship with the employer, as well as with company level doctors.Currently there are examples of similar Commissions deciding some minor cases, but their decisions can never prevent the employee from have access to ordinary (employment) justice.There are obviously various reasons for deciding at a company level some specific issues, such as the levels of employees, and related rights (a highly technical issue, best known to specialists), but also due to the complexity of these cases the employment judge rather appoints an expert to evaluate the point (if he/she feels unable to decide it). However, not even trade unions want these cases to be decided at a company level.There are obviously a number of decisions that are taken at a company level by the employer and trade unions together, but they are rather focused on which are the essential activities to be provided during strikes (a topic on which a judge could still be called on to decide), or how to deal with collective issues such as mass redundancies, transfer of undertaking or bankruptcy, i.e. cases where it is the law that already provides for the parties to meet and possibly take joint decisions.In these latter cases, by the way, procedural rules are very flexible and mostly agreed at the time between the parties, but there would never be evidence taken on oath, or a cross-examination (which by the way almost does not exist in Italian proceedings). Privacy rules might be an issue, but company level agreements do not in general really respect privacy, being also often based on reciprocal confidence rather than on strict legal rules.

Subject: MiscellaneousParties: Tomasz Zalewski – v – An Adjudication Officer, the Workplace Relations Commission, Ireland and the Attorney GeneralCourt: Supreme Court of IrelandDates: 6 and 15 April 2021Case numbers: [2021] IESC 24 and 29Internet publications: https://www.courts.ie/view/judgments/4b94d66e-d29c-45e8-8f91-ad0ff80257a5/85524180-e4af-4b32-abe6-9c64b24bb759/2021_IESC_24%20O’Donnell%20J..pdf/pdf; https://www.courts.ie/acc/alfresco/9b45079f-3702-444a-a35b-132866438d52/2021_IESC_29.pdf/pdf.