Richard Grogan

Speaking to Irish Legal News this morning, Dublin solicitor Richard Grogan said it could take months before hearings resume, raising the prospect of claimants in tens of thousands of delayed cases bringing legal challenges before either the High Court or the European Court of Justice (ECJ).

Although ministers have announced emergency legislation allowing for WRC hearings to take place in public in light of the Zalewski judgment, Mr Grogan said the government had yet to “grasp the nettle” in respect of the independence of adjudication officers.

He suggested the problem could be resolved through the appointment of permanent and full-time adjudication officers, which would itself take some time, but that the WRC “doesn’t have the budget” to offer an attractive salary – potentially around €100,000 each.

The Zalewski case revolved around a contention of 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 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 reaching its conclusion, the court grappled with the difficult issue of defining the “administration of justice” from the case law.

Noting that “independence and impartiality are fundamental components of the capacity to administer justice”, the court said the minister’s power to revoke the appointment of an adjudication officer is “troubling, particularly as it is likely that the adjudication officers will be civil servants in the minister’s department with other responsibilities where they will routinely be required to accept direction”.

The final orders in Zalewski did not include a declaration on the independence of adjudication officers, but the court said it was “sure that its observations in that context will be taken on board”.

Mr Grogan said drawing up legislation to address the issues around public hearings and the provision of evidence on oath or affirmation would be a “five-minute job”, but that the government was still expected by the Supreme Court to address the issue of the independence of adjudication officers.

During the legislative process which led to the Workplace Relations Act 2015, which established the WRC, Mr Grogan was a committee member of the Employment Law Association of Ireland (ELAI).

He said: “We [ELAI] had proposed adjudication officers would be paid 80 per cent of a district judge’s salary. That was rejected out of hand in favour of a day rate.

“We had also proposed that people should be appointed a bit like a district judge – in other words, they would be there, as any judge would be, until their retirement age. They could be removed, but only for stated reasons like a judge can be removed.

“Ultimately, I think this is what is going to have to happen. The challenge that they have is that they don’t have the budget to do that.”

Mr Grogan added: “Until they resolve this issue, there are no hearings going to take place.”