High Court: Constitutional challenge to the WRC’s procedures dismissed

The High Court has dismissed an action challenging the constitutionality of the procedures of the Workplace Relations Commission.


Tomasz Zalewski was dismissed from employment by Buywise Discount Store Ltd in April 2016. He instituted a claim for unfair dismissal pursuant to the Unfair Dismissals Act 1977 and a claim for payment in lieu of notice pursuant to the Payment of Wages Act 1991. These claims were referred to adjudication officer Rosaleen Glackin pursuant to section 41 of the Workplace Relations Act 2015 and section 8 of the Unfair Dismissals Act 1977.

When the issue came before her on 26 October 2016, she had received submissions and documentation from the parties. On that date she granted an adjournment sought by Buywise. When it came before her again on 13 December 2016, she informed the parties that the hearing date had been scheduled in error. Mr Justice Garrett Simons said that “events then took what can only be described as a bizarre turn”.

The adjudication officer informed the parties that she had already issued a decision, “notwithstanding that a full hearing of the claim had never taken place”. She subsequently issued a five-page decision “which reads as if a full hearing had, in fact, taken place”. The decision was dated 16 December 2016, three days later. “It would seem from this chronology that the adjudication officer went ahead and issued her decision notwithstanding that she had been on notice of the fact that no proper hearing had taken place.”

High Court

Mr Zalewski took a constitutional challenge in the High Court against the Workplace Relations Commission, the Adjudication Officer, Ireland and the Attorney General. The principal issue for determination was whether the procedural mechanisms for the resolution of employment disputes, which have been established under the Workplace Relations Act 2015, involve the administration of justice within the meaning of Article 34 of Bunreacht na hÉireann.

Mr Zalewski argued that the determination of claims of unfair dismissal and payment in lieu of notice are matters which are properly reserved to judges appointed in accordance with the Constitution. He claimed that the 2015 Act was invalid where it has purported to confer these decision-making functions upon a non-judicial body, namely adjudication officers and the Labour Court. He also argued, in the alternative, that the procedures prescribed under the Act are deficient.

The State respondents conceded that the decision of the adjudication officer was invalid and offered to consent to the making of an order of certiorari. When Mr Zalewski did not agree to this suggested course of action, they issued a motion seeking to have his claim for declarations pursuant to the Constitution and the European Convention on Human Rights Act 2003 dismissed. This application to dismiss was successful in the High Court but was ultimately refused by the Supreme Court in Zalewski v Adjudication Officer and Workplace Relations Commission [2019] IESC 17.

They argued that an adjudication officer’s decision lacks the character of a binding determination. If an employee wishes to enforce the decision, they must apply to the District Court to do so. They argued that the necessity to have recourse to the judicial power to enforce a decision was fatal to the argument that the adjudication officers are themselves carrying out the administration of justice. They also said that employment disputes have not traditionally been regarded as justiciable.

Mr Justice Simons cited Lynam v Butler (No. 2) [1933] I.R. 74 that “the exercise of the Judicial Power, which is coercive and must frequently act against the will of one of the parties to enforce its decision adverse to that party, requires of necessity that the Judicial Department of Government have compulsive authority over persons”. He held that the WRC lacked the power to enforce its own decisions or to call upon the executive powers of the State, such as An Garda Síochána, to enforce them, which is “one of the essential characteristics of the administration of justice”.


The court said that the test for whether an adjudication involves the administration of justice is the five-point test propounded by the High Court in McDonald v Bord na gCon [1965] I.R. 217, recently applied by the Supreme Court in O’Connell v The Turf Club [2017] 2 I.R. 43

The test requires:

  1. A dispute or controversy as to the existence of legal rights or a violation of the law;
  2. The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
  3. The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
  4. The enforcement of those rights or liabilities or the imposition of a penalty by the Court or by the executive power of the State which is called in by the Court to enforce its judgment;
  5. The making of an order by the Court which as a matter of history is an order characteristic of Courts in this country.

With “some hesitation”, the judge concluded that the necessity of having to make an application to the District Court to enforce a decision of an adjudication officer or the Labour Court deprives such determinations of one of the essential characteristics of the administration of justice.

The District Court “cannot be dismissed as a mere rubber-stamping of the earlier determination. The District Court’s discretion to modify the form of redress represents a significant curtailment of the decision-making powers of the adjudication officers and the Labour Court” as it can overrule their decision to direct that the employee be re-instated or re-engaged.

The judge said that the only reason for hesitation in reaching this conclusion was because of a concern about the limitations of the District Court procedure, as the application to that court is made without hearing the employer and without hearing any evidence.

Mr Justice Simons found that Mr Zalewski’s alternative argument was “not well founded”. The challenge was dismissed. An order of certiorari setting aside the adjudication officer’s decision was granted, having been conceded by the State. The claims were remitted to the Workplace Relations Commission for rehearing, with a 28-day stay on the order allowing for an appeal.

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