Court rules man cannot challenge constitutionality of new employment dispute laws

WRC conceded the decision dismissing the man’s complaints must be quashed

Photograph: Alan Betson / THE IRISH TIMES

Photograph: Alan Betson / THE IRISH TIMES


A man whose unfair dismissal complaint was rejected by the Workplace Relations Commission in breach of fair procedures cannot challenge the constitutionality of new procedures for determining employment disputes, the High Court has ruled.

Because the WRC had conceded the decision dismissing the man’s complaints must be quashed, he no longer has the necessary legal standing to pursue his claims that the procedures breach the Constitution and the European Convention on Human Rights Act 2003, Mr Justice Charles Meenan ruled.

Tomasz Zalewski, North Strand Road, Dublin 3, 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 was “extremely brief”, lasted about 10 minutes, involved no oral evidence or opportunity to cross-examine and the officer accepted written submissions and documents from the sides, it was claimed.

Mr Zalewski understood there would be a further hearing, but when the parties reconvened in December 2016, the officer stated she had decided against Mr Zalewski and in a written decision dismissed his complaint.

He got leave for a 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.

The case was against the officer, the WRC and the State, with Buywise as a notice party.

Peter Ward SC argued the 2015 Act was 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”. That error was sincerely regretted and there was no intent to hear the complaint otherwise than in line with fair procedures, they said.

The solicitors said the WRC would consent to court orders quashing the adjudication officer’s decision, remitting the complaint for rehearing before a different officer and to pay Mr Zalewski’s costs.

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

In his judgment on Thursday, Mr Justice Meenan said, because the outcome of unfair dismissal claims can have profound consequences for people, that made the explanation of the adjudication officer’s decision as having arisen from an administrative error, “all the more unacceptable”.

However, if the WRC’s own procedures were followed, those would have avoided this decision being taken, and the court could not conclude returning the case to the WRC put Mr Zaleskwi in real danger of being adversely affected by the disputed law, he held.

He noted evidence of Eamon Hanrahan, solicitor for Mr Zalewski, that his experience before the WRC was that complaints are often heard without any evidence adduced and no opportunity to test evidence via cross-examination.

While noting this evidence to the effect Mr Zalewski’s case was not “an isolated incident”, that cannot form the basis of a constitutional challenge, he said. The WRC had conceded the decision must be quashed and Mr Zalewski thus had no legal standing to pursue the challenge under the Constitution and ECHR, he ruled.