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Workplace disputes not to be heard in private and required oath and cross-examination

By: Mark Tottenham BL

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Supreme Court, on appeal from the High Court, determines: (a) that the adjudication procedure for workplace disputes, including unfair dismissals, constituted the administration of justice; (b) that the fact that such administration of justice was not conducted in courts of law did not render it unconstitutional, on the grounds that it was subject to supervision by the courts, by way of judicial review; (c) that the prohibition on such hearings being conducted in public was unconstitutional; and (d) the absence of any provision for evidence on oath and cross-examination in such hearings was unconstitutional.

O'Donnell J (majority decision): Constitutionality of adjudicative process - Workplace Relations Act 2015 - whether process amounted to the administration of justice - appeal from High Court - dismissal of employee - claim for unfair dismissal - claim for payment in lieu of notice - short hearing - adjournment of hearing - decision recording full hearing - 'gross misconduct' of employee - decision of adjudication officer quashed by agreement - whether claims of a type historically determined by a court - relevance of access to a court of law - Article 37 of the Constitution - Article 40.3 of the Constitution - proceedings not held in public - development of jurisprudence - proliferation of administrative bodies - administrative tribunals - enforcement of orders -

"The enforcement procedure provided under ss. 43 and 45 requires careful analysis. Structurally,it maintains the feature of resort to court for enforcement of the decision in the caseof a failure to comply. However, enforcement is almost automatic, does not permit involvement by the losing party, and,on the presentation of formal proofs, is mandatory. While a court is the vehicle for enforcement, it is not employed for its capacity to administer justice fairly between opposing parties by reference to the law, but,rather,for access to the enforcement mechanism."

" I consider that if it was possible to conclude that the procedure to determine an unfair dismissal case under the provisions of the 2015 Act did not constitute an administration of justice for the purposes of the Irish Constitution, solely because of these features of the enforcement process, it would be to almost empty the concept of the administration of justice of any independent meaning, and render it an almost formal and circular concept: the administration of justice which is consigned so solemnly to courts established under the Constitution and to judges appointed under it would be no more than business which from time to time is done in those courts."

"In my view,the function ofthe W.R.C.,andtheLabour Court on appeal,isthe administration of justice. It is not coincidental that the parallel jurisdiction in the conferred upona tribunal understood to be performing a judicial function and part ofthe judicial system."

MacMenamin J (dissenting): Background to legislation - administration of justice in courts - courts of limited and local jurisdiction - inability of decision maker to enforce decisions - whether jurisdiction of the courts had been ousted - procedural requirements - quasi judicial bodies - absence of constitutional limitations -

"In this case, there are areas of agreement between the judgments. As I understand it, there is consensus that the five tests, as set out in McDonald, are satisfied, and consequently the procedures under question here are incompatible with Article 34.1 of the Constitution."

"In this case, the Court is of one mind that the procedure in question did constitute an administration of justice, contrary to Article 34 of the Constitution.That decision is based on theapplication of settled principles. I would hold that, by that logic, and the application of those long-settled principles, the consequent orders should necessarily be to declare the procedures in question under the WRA 2015, as repugnant to the Constitution of 1937. "

Charleton J (dissenting): Lack of right of appeal to a court - whether substantial grounds existed for dismissing the employee -

"Correctly deciding what happened to Mr Zalewski to get him sacked from his job in Buywise Discount Stores in Dublin would tax the abilities of a professional judge. This unfair dismissal case does not involve any fine ruling as to points of precedent, law or statutory interpretation; adjudicating his case does require experience of how people behave, patience in listening to two starkly different sets of factual assertions and a determination to come to fair findings that will reflect as far as is possible the actual facts as drawn from a haze of contradictory assertion"

"No evidence is given on oath. Powers of compulsion are granted, breach of which is a summary offence, such as giving notice in writing to any person requiring their attendance at a specified time and place to give evidence or produce documents. A decision must be given in writing but mistakes of an administrative or clerical nature may be corrected by notice to the parties. Hearings are in private but all rulings are published, though anonymised. Regulations governing hearings are possible under s 41(17) as to “the presentation of a complaint, referral of a dispute or conduct of proceedings” but no such provisions have been passed. Hence, there is only informal guidance as to how those who have never run a case might conduct a hearing such as that brought by Mr Zalewski."

"Mr Zalewski’s treatment by the Workplace Relations Commission was nothing short of dreadful."

"Section 43 offends the Constitution, is incompatible with a fair and impartial hearing and cannot be saved through any construction that does not do violence to the plain words of the legislation."

"But, does unfair dismissal need an adjudication by a judge, even if only after a preliminary but non-binding unless appealed ruling by anadministrator or tribunal? As a matter of justice and of close connection to contract law, the answer is yes."

"Dismissal in this manner with no recourse to a final analysis by a court leaves Mr Zalewski bereft of reputation, damaged in the marketplace for work and stripped of the human dignity of labour. This is a judicial controversy."

McKechnie J (dissenting): [judgment not yet available]

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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