Zalewski vs The Workplace Relations Commission [2022] 1 IR 421

This month we go a little outside the realm of taxation and bring you an update on a Supreme Court decision that looked at the constitutionality of the adjudicative process of the Workplace Relations Commission (“WRC”). The Supreme Court analysed the extent to which cases taken to the WRC were a process that amounted to an administration of justice under the Constitution. The relevance of the matter from a tax perspective is the impact that this case may have on the Tax Appeals Commission in 2026 with the recently published Revised General Scheme for the Finance (Tax Appeals and Fiscal Responsibility) Bill 2024.

Background

The appellant, Mr. Zalewski, challenged the constitutionality of the adjudicative process under the Workplace Relations Act 2015 (“the 2015 Act”). His claims arose from his dismissal by his employer, leading to two statutory complaints:

  1. Unfair dismissal under the Unfair Dismissals Act 1977; and
  2. Payment in lieu of notice under the Payment of Wages Act 1991.

The Workplace Relations Commission (“WRC”) adjudication process was contested following procedural irregularities in the appellant’s case, where a decision issued without a full hearing. The High Court ([2020] IEHC 178) rejected the constitutional challenge, holding that WRC determinations did not constitute the administration of justice under Article 34 of the Constitution. The appellant appealed directly to the Supreme Court.

The Supreme Court ultimately accepted to hear the matter on the broader issues of constitutionality. This note will focus mainly on the decision as it to pertains to the administration of justice and the discussion on that topic.

Issues

There were three main issues before the Supreme Court:

  1. Does the WRC adjudication process amount to the administration of justice under Article 34 of the Constitution?
  2. If so, can it be validated under Article 37 as the exercise of limited judicial functions?
  3. Are certain procedural features of the 2015 Act inconsistent with constitutional requirements under Article 40.3?

Discussion

This case has particular significance given the overlap of the function of the WRC and the Tax Appeals Commission (“TAC”). The case suggests that the fundamental starting point is not the form of the power being exercised but rather the nature and extent of the power being exercised. At the same time, Article 37 of the Constitution does provide for the existence of non-judicial arms of government exercising quasi-judicial powers in certain circumstances, as long as they are not adjudicating on criminal matters.

The Court noted (at para 108) that the Blueprint to Deliver a World-Class Workplace Relations Service (2012) set out a framework that was “precisely the task of any court required to resolve a justiciable controversy”. Further on at para 109 it was noted that it was “plain that the process set out was intended to be a judicial process” and concluding that “the function of the WRC, and the Labour Court on appeal, is the administration of justice”.

Turning to the first matter and whether appeals to the WRC amounted to an administration of justice, the Court applied the five-limb test from McDonald v Bord na gCon [1965] IR 21:

  1. There must be a dispute or controversy as to the existence of legal rights or a violation of the law;
  2. There must be a determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
  3. There must be a final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
  4. There must be a way to enforce those rights or liabilities or the impose a penalty which is called in by the court to enforce its judgment;
  5. The decision must allow for the making of an order characteristic of the ordinary courts.

The parties accepted that the determination of the WRC exhibited the first three characteristics but disputed whether the fourth and fifth characteristics could be fulfilled.

In terms of the fifth test, it was held that, as claims that were being dealt with by the WRC had previously been dealt with by the courts historically and as employment legislation was generally implicit in any contract of employment, then the hearing and determination of a claim for unfair dismissal was characteristic of the ordinary business of the courts.

In terms of the fourth test, while enforcement under section 43 of the 2015 Act required an application to the District Court, this near-automatic process did not negate the judicial character of WRC decisions. The Court concluded that WRC adjudication constitutes the administration of justice. Therefore, the Court held that the WRC was administering justice for the purposes of Article 34 of the Constitution.

Turning to the nature and extent of the judicial function being carried out by the WRC, the Court examined further arguments in relation to Article 37. The Court found that WRC functions are “limited” within the meaning of Article 37. Limitations included subject-matter restriction to employment law, capped awards, appeal rights to the Labour Court and High Court, and susceptibility to judicial review.

The appellant had also made several arguments under Article 40.3 of the Constitution:

  1. There was no requirement that adjudication officers or members of the Labour Court have any legal qualifications, training, or experience.
  2. There was no provision for an adjudication officer to administer an oath or affirmation. There was no criminal sanction for a witness who gave false evidence before an adjudication officer.
  3. There was no express provision made for the cross-examination of witnesses.
  4. The proceedings before an adjudication officer were held otherwise than in public.

These arguments centred around whether the process contained sufficient procedural safeguards to protect an appellant’s fundamental rights under Article 40.3. The Court found that the WRC generally satisfies the fundamental requirement for procedural justice, but did acknowledge two particular aspects of the process which were unconstitutional:

  1. The general prohibition on public hearings before adjudication officers (section 41(13)) violated the principle of open justice.
  2. The Absence of provision for evidence on oath and sanction for false testimony was also contrary to constitutional requirements.

It was noted, however, that the absence of an express statutory right to cross-examination was not fatal, as such a right was implied by constitutional fairness and WRC guidelines.

Conclusion

The Supreme Court held that WRC adjudication under the 2015 Act involved the administration of justice but was saved by Article 37 as the exercise was of limited judicial functions. However, section41(13) (mandatory private hearings) was deemed unconstitutional, and the Act must provide for the possibility of evidence on oath.

You can read the full case at the link below:

www.bailii.org