Supreme Court: Challenge to constitutionality of WRC rejected in landmark judgment
The Supreme Court has upheld the constitutional validity of the Workplace Relations Commission (WRC) in a significant ruling relating to the administration of justice in the State.
It was held that the WRC process was not unconstitutional due to the lack of an appeal to the courts. Although the court declared that certain aspects of the WRC procedures were unconstitutional, it declined to strike down the WRC process as a whole.
The case centred around the contention by the applicant that the administration of justice in the State was within the sole remit of the courts. It was claimed that the lack of an appeal process to the courts from the WRC rendered the entire process as an impermissible administration of justice.
In a 4-3 majority opinion, the court determined that the WRC process was a constitutional administration of justice in the State. In so finding, the court grappled with the difficult issue of defining the “administration of justice” from the case law.
The applicant, Mr Tomasz Zalewski, had been fired from his job as a security guard in 2016. He subsequently issued proceedings for unfair dismissal in the WRC. At a short hearing in October 2016, the employer’s representative made an adjournment application after Mr Zalewski’s solicitor insisted that any evidence had to be given by witnesses who were not present at the time. The matter was adjourned.
At the return date in December 2016, the applicant was informed by the adjudication officer that she had already issued a decision in the case dismissing the complaints. The applicant brought judicial review proceedings seeking to quash the decision. It was claimed that the entire WRC process was an unconstitutional administration of justice that was properly the remit of the courts.
The State respondents conceded that there was a serious procedural defect in the case and offered to consent to an order of certiorari. The applicant did not agree to this, stating that it would not resolve the matter.
In the High Court, the trial judge determined that the WRC was not engaged in the administration of justice in the State. The court applied the five-criteria test in McDonald v. Bord na gCon  I.R. 217 and held that a WRC decision lacked the crucial criterion of enforceability because a District Court order was required to enforce a WRC decision. As such, the court held that the decision-making of the WRC was not the administration of justice because it was reliant on judicial approval to enforce its decisions. Further, the trial judge rejected Mr Zalewski’s contentions that the process was unconstitutional because hearings were not held in public and there was no express right to cross-examination of witnesses. The case was appealed directly to the Supreme Court.
Giving the majority judgment in the case, Mr Justice Donal O’Donnell held that the WRC was in fact engaged in the administration of justice in the State, but held that this was permissible by reference to Article 37 of the Constitution. Article 37 provided that limited judicial functions and powers could be conferred on State bodies (or persons) established by law. In reaching this decision, the court considered the “difficult conceptual question” of what constitutes that administration of justice.
In a 100-page decision, the court considered a number of well-known cases, including the McDonald case, Lynham v. Butler (No. 2)  I.R. 74, In re The Solicitors Act 1954  I.R. 239 and Cowan v. The Attorney General & Ors  I.R. 411. The court noted the diverging approaches of different courts to the definition of the administration of justice and held that it was almost impossible to give a singular definitive test for determining whether a body was engaged in the administration of justice. The court also noted that it was exceedingly rare for a court to strike down the validity of a State body on the basis that it was an unconstitutional administration of justice.
In light of these findings, it was held that the five-stage test for determining the administration of justice outlined in McDonald should not be a “canonical checklist for the identification of the administration of justice to the exclusion of discussion in the prior case law.” The court considered the case of Keady v. Commissioner of An Garda Síochána  2 I.R. 197 and held that the decisions in Re Solicitors Act and McDonald should be treated as guides to determining the administration of justice rather than rigorous tests to be applied strictly.
In particular, Mr Justice O’Donnell commented that the fifth limb of the McDonald test for the administration of justice (being whether the type of case was traditionally dealt with by the courts) was not an “infallible guide” and must be applied with flexibility.
In the present case, the court held that the trial judge was wrong to say that the WRC’s decisions were not enforceable decisions due to the requirement for an application to the District Court. It was held that the District Court jurisdiction was “almost automatic,” with applications being made ex parte. Further, a court had no discretion to reject the application if the formal proofs were before it. The reality was that every party knew the WRC decisions would bind them and, importantly, they knew that the WRC was determining their rights and responsibilities in a given case.
However, although the WRC was engaged in the administration of justice, it was held that this was permissible under Article 37 of the Constitution, which expressly provides that non-judicial bodies may perform limited judicial functions in accordance with law. The court held that the WRC jurisdiction was limited in a number of respects. First, it could deal with only employment disputes and could only award up to 104 weeks’ wages. Moreover, the WRC decisions were subject to de novo appeals to the Labour Court, with the potential for an appeal on a point of law to the High Court. Further, it was held that the WRC was limited by judicial review. As such, the WRC process was valid under Article 37.
However, Mr Justice O’Donnell held that certain aspects of the WRC procedure were unconstitutional. It was held that the failure by the WRC to hold hearings in public was constitutionally wrong, noting that public hearings were “of the essence of the administration of justice.” While some cases could be heard in private, the blanket provision for private hearings was struck down. Additionally, the court said that “the absence of at least a capacity to allow the adjudication officer to require that certain evidence be given on oath is inconsistent with the Constitution.” The court justified this comment by noting that evidence on oath or affirmation provides the real utilitarian function of preventing false evidence.
The court was not satisfied that the lack of an express provision for cross-examination in the WRC was unconstitutional, noting that cross-examination was not precluded by the WRC if it was deemed necessary for a fair hearing. It was held that an applicant had a remedy for a failure to allow the cross-examination of a witness and, as such, the absence of an express right to cross-examination was not unconstitutional. However, the court stated that it was unsatisfactory that there was no express provision for cross-examination in the WRC procedures, particularly because cross-examination is established as a fundamental aspect of constitutional fair procedures.
Overall, the Supreme Court determined that the WRC was engaged in the administration of justice which was permissible by reference to Article 37 of the Constitution. The defects in the WRC procedure did not render the entire 2015 Act unconstitutional because these were not central features of the WRC process.
However, the court emphasised that it was not criticising the policy of providing a cheap, efficient and relatively informal way of dealing with employment disputes and there was no need for WRC adjudication officers to have formal legal training. It was only where there was a rejection of constitutional legal principles that the WRC procedures were unacceptable.
The three dissenting judges in the case each provided judgments outlining their views as to the constitutionality of the WRC. Although these judgments cannot be adequately summarised in this case report, the essential complaints of the dissenting opinions related to the lack of an appeal mechanism to the courts to resolve the disputes heard by the WRC. As such, while the decision of Mr Justice O’Donnell forms the ratio decidendi of the case, the final conclusion was ultimately a marginal decision.
© Irish Legal News Ltd 2021