In April 2021, the case of Tomasz Zalewski v. Adjudication Officer & Ors. [2021] IESC 24 concluded before the Supreme Court.
Mr Zalewski’s claim to have the entire system by which Adjudication Officers determine cases involving the rights of employees declared unconstitutional was unsuccessful.
Since, however, the Supreme Court has ruled that a change should be applied to how the Adjudication Officers and the Workplace Relations Commission (WRC) processes are conducted.
Case history
In 2016, Mr Zalewski made unfair dismissal and non-payment of wages claims against his former employer before the WRC. After the first hearing, the Adjudication Officer adjourned the case.
The WRC followed up with Mr Zalewski’s legal representative with the date and time of the second day of hearing. When Mr Zalewski and his representative arrived for the second day, the Adjudication Officer told them outside the hearing room that she had already made and issued her decision on the matter. They were then informed that the second day invitation was an administrative error.
However, in early 2017, Mr Zalewski began judicial review proceedings in the High Court. He sought to have the Adjudication Officer’s decision quashed and a declaration that the entire WRC adjudicative process established under the Workplace Relations Act 2015 (the 2015 Act) is unconstitutional.
Supreme Court ruling
The Supreme Court ruled that, in most cases, Adjudication Officers acting on behalf of the Director General of the WRC were administering justice. To administer justice would require certain minimum standards to be met.
The procedures under the Workplace Relations Act 2015 didn’t meet these standards. So, the procedures under the 2015 Act were deemed unconstitutional. The Supreme Court found that in order for proceedings before the WRC to meet the requisite standards, two significant changes had to be made. These were:
- Proceedings before the Workplace Relations Commission should be held in public, and;
- Evidence in proceedings before the Workplace Relations Commission should be given on oath.
The result of these changes was that all proceedings before the WRC were paused for a time. This was to allow the Oireachtas to enact legislation that brought the WRC in line with the requirements fixed by the Supreme Court. The Workplace Relations (Miscellaneous Provisions) Act 2021 was enacted on July 22nd, 2021.
In addition to the above, the 2021 Act made further changes:
- Set standards for the appointment of Adjudication Officers of the Workplace Relations Commission, such as prohibiting the appointment to the position of those who have been convicted of certain offences, undischarged bankrupts and persons disqualified from being directors of a company.
- Provided for the removal of Adjudication Officers where they have engaged in certain misconduct or failed to execute their duties as an Adjudication Officer.
- Amended the process for enforcement of Workplace Relations Commission decisions to require enforcement proceedings be brought on notice.
Evidence to be given under oath
A person may now have to swear an oath or affirmation by the Adjudication Officer hearing the case. If that person gives a materially false statement, knowing it to be false, the person can be fined up to €100,000 and face a term of imprisonment of up to 10 years.
The 2021 Act allows for the oath or affirmation to be administered in proceedings brought pursuant to s.8 Unfair Dismissals Act, s.9 Protection of Employees (Employers’ Insolvency) Act 1984, s.79 Employment Equality Act 1998, and s.25 Equal Status Act 2000.
Hearings will now be heard in public
Going forward, proceedings will be held in public. That is unless the Adjudication Officer believes that special circumstances require that proceedings be conducted “otherwise than in public”.
That means that unconnected parties can be denied entry to the hearing and that journalists would be prevented from reporting certain information in relation to the case. Furthermore, some identifying information will be removed from the written determination published by the WRC.
Other Acts amended
The 2021 Act also amends the Equal Status Act 2000, the Employment Equality Act 1998, the Protection of Employees (Employers’ Insolvency) Act 1984, the Unfair Dismissals Act 1977, and the Industrial Relations Act 1946 to allow for the same penalties for perjury as outlined above.
Within 12 months of enactment, a review will be conducted of these reforms and a report will be presented to the Oireachtas.
How will the Supreme Court’s ruling affect employers?
The process of dealing with the Workplace Relations Commission will be more formal and demanding from now on. Adjudication Officers will be more like specialist judges hearing employment matters. Adjudication Officers and employers and employees who find themselves in litigation will also be under increased media scrutiny, which heightens the risk of reputational damage.
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