Killian Flood BL

About this case:

• Citation:
  [2021] IESC 29
• Judgment:
  External link
• Court:
  Supreme Court

The court determined that the applicant was entitled to the full costs in both the Supreme Court and High Court. In making the decision, the court held that the applicant had been significantly successful in the appeal and had raised matters of genuine public interest.

The court also rejected a submission from the applicant that it should make declarations that the adjudicative function of the WRC was the administration of justice within the meaning of Articles 34 and 37 of the Constitution. The court said that if the declarations were made, there would be “a risk of unintended consequences”.

Background

Last week, the Supreme Court ruled on the applicant’s constitutional challenge to the WRC. The applicant, Mr Tomasz Zalewski, claimed that the WRC was an unconstitutional administration of justice in the State and agitated for the underlying legislation to be struck down. The applicant also claimed that the WRC procedures were unfair because they did not allow for public hearings, independent adjudicators or proper cross-examination.

Although the High Court rejected the proceedings outright, the Supreme Court allowed the appeal in certain respects. The court held that the WRC was in fact engaged in the administration of justice in the State within the meaning of Article 34 of the Constitution and therefore overturned the High Court’s ruling in this respect. However, the court went on to hold that the WRC’s jurisdiction to administer justice was permissible by reference to Article 37 of the Constitution.

Further, the court held that the requirement for all WRC hearings to be held in private was inconsistent with the Constitution. It was also held that the absence of any provision for evidence to be given on oath or affirmation was repugnant to constitutional principles. Finally, the court made certain comments about the need for enhanced independence for adjudication officers and the importance of cross-examination in WRC proceedings.

In light of these rulings, the applicant sought declarations that the WRC was engaged in the administration of justice in the State. Counsel for the State submitted that no declarations should be made due to the unintended consequences that might flow from the declarations. It was claimed that the range of functions that would be affected by such declarations was very broad and that the proceedings only concerned issues relating to a claim for unfair dismissal.

On the issue of costs, it was submitted that the applicant should receive his full costs. The State respondents argued that he should only receive 75 percent of the costs, having regard to his failure to strike down the WRC legislation entirely.

Supreme Court

The court refused to make any declaration regarding the WRC’s jurisdiction to administer justice in the State on the basis that it had not given any consideration of the potential non-judicial functions that might be affected. It was accepted that the declarations may give rise to unintended difficulties. However, the court emphasised that the refusal to make the declarations did not detract in any way from the decision that the WRC was engaged in the administration of justice.

The court accepted that it would declare section 41(13) of the Workplace Relations Act 2015 and section 8(6) of the Unfair Dismissals Act 1977 (which required WRC proceedings to be heard in private) to be inconsistent with the Constitution. Further, the court made a declaration that the absence of any provision for the administration of oaths or affirmations to be inconsistent with the Constitution.

On the issue of costs, the court determined that the applicant was entitled to the full costs of both the Supreme Court and High Court hearings. The court had regard to the significant public interest element to the proceedings and noted that the trial judge awarded Mr Zalewski 50 percent of his costs despite losing the case entirely.

The court considered that Mr Zalewski had “succeeded in significant part” in his Supreme Court appeal, it was held that he should be awarded the full costs of the proceedings. In particular, Mr Zalewski had persuaded the court that the administration of justice was involved in the WRC proceedings and this “carries with it enhanced obligations concerning the process which must be followed”. Therefore, the finding was of “real significance” and in the public interest.

Conclusion

The court duly made the final orders in the case.