Man entitled to challenge constitutionality of new workplace dispute procedures

A man is entitled to pursue claims that new procedures for determining workplace disputes breach the Constitution and the European Convention on Human Rights Act 2003, the Supreme Court has ruled.

The High Court previously decided Tomasz Zalewski lacked legal standing to continue with his constitutional challenge in light of the Workplace Relations Commission’s acceptance that an adjudication officer’s dismissal of his complaints of unfair dismissal involved an “administrative error” and would be quashed.

He appealed the legal standing ruling and a five-judge Supreme Court unanimously allowed his appeal on Wednesday, with the effect his constitutional challenge will proceed in the High Court on a date to be fixed.

Mr Zalewski, North Strand Road, Dublin 3, had claimed 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 following the abolition of the previous Employment Appeals Tribunal system for adjudicating claims under the Unfair Dismissal and Payment of Wages Acts.

Peter Ward SC, for Mr Zalewski, argued the 2015 Act is constitutionally flawed because hearings before adjudication officers are held in private, evidence is not heard on oath, there is no penalty for any person who gives false evidence and adjudication officers are not required to have any legal qualification or experience.

In April 2017, solicitors for the WRC wrote saying the officer’s decision had, due to an “administrative error”, been filed as a “decision to issue” rather than “adjourned to further hearing”. The WRC consented to court orders quashing the officer’s decision, remitting the complaint for rehearing before a different officer and to paying Mr Zalewski’s costs.

The WRC then asked the court to overturn the grant of leave for the constitutional challenge, saying, because it had conceded the officer’s decision must be quashed, Mr Zalewski no longer had legal standing to pursue that.

The High Court ruled, because the WRC had conceded the decision must be quashed, Mr Zalewski had no legal standing to pursue the constitutional challenge.

Giving the Supreme Court judgment overturning that ruling, Ms Justice Mary Finlay Geoghegan said Mr Zalewski, in line with the applicable legal test set out in the 1980 Cahill v Sutton decision, has legal standing to pursue the constitutional challenge.

The challenge is to the statutory scheme which subsists independently of anything permitted by the relevant statutes governing what an adjudication officer might or might not do, she said.

It could not be said the issues between the sides had been finally decided by the WRC decision to have the matter heard by another adjudication officer as Mr Zalewski remains in the position of having his claims potentially decided under a statutory scheme which he alleges is unconstitutional, she said.