Constitutionality of new Workplace Relations Act challenged

Judge grants man leave to contest adjudication officer’s decision in judicial review

A man has taken a legal challenge to the constitutionality of new procedures set up under the Workplace Relations Commission (WRC) for determining employment disputes.

The action could have significant implications for the procedures established under the Workplace Relations Act 2015 following the abolition of the Employment Appeals Tribunal system for adjudicating claims under the Unfair Dismissal and Payment of Wages Acts.

The case arose after an adjudication officer, appointed under the 2015 Act, dismissed Tomasz Zalewski’s claims he was unfairly dismissed in December 2016 from his employment as a security guard and store supervisor with Buywise Discount Store Ltd.

He had been in that employment since March 2012 and denied his employer’s claims of alleged gross misconduct, including allegations he had failed to follow policy for robbery prevention and had no interest in the success of the workplace.

The adjudication officer upheld the termination of his employment without affording him fair procedures or constitutional justice, it is claimed.

Constitutional rights

On Monday, Mr Justice Seamus Noonan granted an ex parte application (one side only represented) by Peter Ward SC, for Mr Zalewski, for leave to challenge the officer's decision in judicial review proceedings.

The case is against the officer, the WRC and the State. Buywise Discount Store is a notice party.

Mr Zaleswki, of North Strand Road, Dublin 3, wants several orders and declarations, including that various provisions of the 2015 Act and the Unfair Dismissals Act are unconstitutional.

Mr Ward argued the new system under the 2015 Act “effectively sets the constitutional rights of the applicant at nought”.

The claim under the Unfair Dismissals Act was his client’s primary complaint in the proceedings before the adjudication officer, counsel said.

A hearing before the officer on October 26th, 2016 was “extremely brief”, lasted about 10 minutes and involved no oral evidence or opportunity to cross-examine and the officer accepted written submissions and documents from the sides, the court was told.

His side understood there would be a further hearing but when the parties reconvened in December 2016, the officer informed his side she had decided against Mr Zaleswki, he said.

Final adjudication

His case was that the process of determining claims under the Unfair Dismissal and Payment of Wages Acts constitutes the administration of justice involving a decision on the rights of the parties and a final adjudication involving a penalty.

Such claims were heard by an adjudication officer not required under the 2015 Act to have any particular qualifications or experience. The Act, for example, did not provide for taking evidence on oath, with the effect hearings can proceed on the basis of unsworn evidence and no opportunity to cross-examine.

There was “always a constitutional question mark” over the Employment Appeals Tribunal process but that question mark “hangs very much more so” in relation to the adjudication officer process which fails to vindicate the rights to constitutional justice and fair procedures, he said.

While the Minister for Jobs can make regulations under the 2015 Act, there are no such regulations but only guidelines which do not provide for sworn evidence and leave the adjudicating officer with the responsibility of running the hearing and adjudicating, he said. This was an unconstitutional process.

Mr Justice Noonan said he would grant leave for judicial review and restrain the WRC progressing the applicant's appeal to the Labour Court pending further order of the High Court.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times